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CHARGES AGAINST LEBBEUS R. WILFLEY, JUDGE OF THE 
UNITED STATES COURT FOR CHINA, AND PETITION FOR HIS 
REMOVAL FROM OFFICE. 


To Theodore Roosevelt, 

President of the United States: 

The undersigned, in his own behalf, and in behalf of various Amer¬ 
ican citfzens residents of Shanghai, China, presents the following 
charges against Lebbeus R. Wilfiey, judge of the United States court 
for China, to wit: 

First Charge. That said Lebbeus R. Wilfle;^, while holding the 
office of judge of the United States court for China, and while acting 
in such capacity, was guilty of oppression and a gross misuse of his 
powers as judge of said court, in that he, without cause, maliciously 
and contrary to their rights as citizens of the United States, pre¬ 
vented from practicing before the United States court for China the 
following lawyers, to wit: Francis M. Brooks, William I. Rogers, 
Cecil Holcomb, Edward H. Lamme, Harry L. Hart, Lorrin Andrews, 
duly admitted attorneys and counselors, holding certificates of admis¬ 
sion to practice in the United States consular court in Shanghai, 
China, and members of the bar, regularly practicing in said consular 
court in China and in the courts of other countries held in Shanghai 
and in other parts of China for many years, and citizens of good 
standing in that community and in the communities of the United 
States where .they had formerly lived'; all of whom are also duly 
admitted members in good standing of various State and Federal 
courts of the United States, and some of whom were attorneys and 
counselors of the United States Supreme Court in good standing and 
in regular practice there; and refused to admit said attorneys to prac¬ 
tice in his court upon motion and upon proof of good character as 
provided by the rules of the Supreme Court of the United States and 
its Federal courts; and thereby in effect disbarred the said attorneys 
and counselors from said United States court for China without any 
cause, without any charges being filed against them, without due pro¬ 
cess of law, and in defiance of the rules and practice of the United 
States Supreme Court and of the Federal and Territorial courts of the 
United States adopted and in force since the year 1790; and thereby 
ruined the said attorneys and counselors in standing and reputation 
in that community, deprived them of their livelihood, impoverished 
them, and left them citizens of the United States in a distant country 
without means of support for themselves, their wives, and children. 

That for many years the consular courts in the United States have 
existed in Shanghai and in other parts of China, and members of the 
29865—08-1 



2 CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. o 

bar of the various State and Federal courts of the United States had 
been admitted to practice upon motion in accordance with the rules 
of the United States Supreme Court and the Federal and Territorial 
courts of the United States. 

That said above-named attorneys and counselors had been in 
practice in said consular courts, some of them for many years, and had 
acquired a large clientage and large business; and from long and 
honorable practice had acquired a standing and reputation in that 
community for honesty, integrity, and ability as attorneys and coun¬ 
selors and as men. 

That on the 30th day of June, 1906, an act was passed by the Con¬ 
gress of the United States creating a United States court for China. 

That by the provisions of said act said United States court for 
China superseded the United States consular courts for China in all 
civil cases where the amount in controversy exceeded $500 and in all 
criminal cases where the punishment might exceed $100 or sixty days 
imprisonment, or both; and gave to the said United States court 
appellate jurisdiction over the judgments of the consular court and 
supervisory control over the actions of the consular courts relating 
to the estates of persons dying in China. 

That said act provided that the practice of said court should be in 
accordance with the existing procedure of the consular courts in 
China, with power only to modify and supplement such rules and 
procedure; and further provided in all cases where treaties and law 
were deficient to give jurisdiction or furnish suitable remedies the 
common law and the law established by the decisions of the United 
States courts should be applied by said court in its decisions. 

That by virtue of the said act of Congress, and by virtue of the 
said court of China superseding and taking the place and most of the 
jurisdiction of said consular courts, the attorneys and counselors of 
said consular courts became attorneys and counsellors of said United 
States court of China, and entitled to practice as attorneys and 
counselors therein. 

That b}^ virtue of said act, the consular courts of China were at 
once, upon the passage and approval of said act, deprived of their 
jurisdiction to entertain and try various cases that were then pend¬ 
ing in the said consular courts; and said cases were at once trans¬ 
ferred to the United States court of China, and after the 30th day of 
June, 1906, new cases of which said court had sole jurisdiction were 
commenced and held until the arrival of said Wilfley and organization 
of the said United States court of China on December 17, 1906; and 
that during all of said time from June 30, 1906, until December 17, 
1906, the attorneys and counselors of the consular courts of China 
had appeared as attorneys and counselors for their clients in the 
cases so transferred to the United States court of China, and appeared 
on the morning of the first day when said court opened for the pur¬ 
pose of protecting the interests of their said clients. That to their 
surprise, they were informed in open court by said Lebbeus R. Wil¬ 
fley, that he had just adopted rule 1, which he read, providing that 
no American lawyers would be permitted to appear and practice in 
his court until they had passed an examination in the following 
branches: Equity, evidence, pleading, contracts, torts, internationd 
law, criminal law. United States Revised Statutes affecting consular 
courts, and wills and administration of estates, and then announced 
that he would hold such examination one week from that date. 


3 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

k' 

That unless this examination ^Yas passed at that time no attorneys 
of the United States, regardless of the certificates which they held, 
would be allowed to practice in the United States court for China. 

That, on the contrary, attorneys of other nationalities would be 
allowed to practice in said courts upon presentation of certificates 
from their representative consuls, showing that they were qualified 
to practice in their own consular courts. 

That your petitioner and other members of the American bar at 
Shanghai protested against this practice, asserting that they were 
already rnembers of that court and that in any event, under the rules 
of the United States Supreme Court, they were entitled to be admitted 
upon motion and proof of good character. 

That said Lebbeus R. Wilfley said that he would not; permit any¬ 
one to practice before him until examined; that he had absolute 
power and could make any rules he saw fit, and that no American 
attorneys would be permitted to practice before him until they had 
passed this examination. 

That said Lebbeus R. Wilfley refused to allow any extension of 
time to your petitioner or the other attorneys, in which they might 
finish their business then pending in the United States court for 
China; and that he refused to allow them to appear in said court in 
connection with their cases transferred from said United States court. 

That while your petitioner and his partner, F. M. Brooks, having 
then pending in said court and in the consular courts some thirty 
or more important cases in which they had been retained an^l had 
received retainers, although they believed that the intentions of said 
Judge Wilfley were not honest, in order to try to protect the inter¬ 
ests of their clients, took said examination. 

That on the day before Christmas the said above-named attor¬ 
neys and counselors, with two other members of the American bar 
of Shanghai, F. R. Jernigan and his partner, S. Fessenden, took said 
examination before said Wilfley. 

That said Wilfley refused to allow them to take copies of the ques¬ 
tions asked and the answers which they made. 

That on the day after Christmas said Wilfley told them, when 
they called at the court pursuant to his direction, that the clerk of 
the court would inform them of the result of said examination. 

That said attorneys and counselors then called upon one Hinckley, 
the clerk of the said court of the United States for China, and 
were informed that none of the said six attorneys and counselors 
had passed; that only Jernigan and Fessenden had passed, compris¬ 
ing one firm. 

That your petitioners and others of said attorneys and counselors, 
whom Wilfley said did not pass the examination, called upon said 
Wilfley and asked him for copies of the questions and answers, so 
that they could ascertain whether they had answered the questions 
properly or not. 

That said Wilfley refused to allow them to see any of said ques¬ 
tions and answers; and thereafter, in defiance of the rules, proce¬ 
dure, and decision of all the Federal courts of the United States and 
Territories and of the Supreme Court of the United States, refused 
to allow them, or any of them, to practice in the said United States 
court for China, to the great loss and detriment of the clients of said 
attorneys and counselors, and to the disgrace and ruin of said attor¬ 
neys and counselors themselves. 


4 


CHAEGES AGAINST JUDGE LEBBEUS E. WILELEY. 


Second Chaege: That said Lebbeus R. Wilfley, while holding the 
office of judge of the United States court for China, and acting in that 
capacity, by a gross misuse and abuse of his powers as such judge, 
while preventing the above-named attorneys and counselors, Ameri¬ 
can citizens as set forth in the first charge, from earning their liveli¬ 
hood and practicing their profession in the United States court for 
China, allowed and permitted one Arthur L. Bassett, who was and is 
holding the office of district attorney for the United States court for 
China since the establishment of the said United States court for 
China, and who is a friend and protege of said judge, to practice as 
such district attorney, and also privately as an attorney in civil cases 
in said court, without having passed a written examination in accord¬ 
ance with the rule 1 so adopted by the said Lebbeus R. Wilfley, 
and as said Lebbeus R. Wilfley had required of all members of the 
American bar. 

That said Arthur L. Bassett was not a member of the American bar 
in Shanghai and had not been admitted to practice, as your petitioner 
is informed and believes, in a consular court of Shanghai, and is not 
and was not a member of the bar of the United States Supreme Court, 
nor of any Federal courts, so far as your petitioner has been able to 
ascertain. 

That said Bassett said he owed his position as district attorney of 
the United States court for China to said Wilfley; and had been 
deputy under said Wilfley when said Wilfley held the position as 
attorney-general for the Philippine Islands. 

That said Bassett came to Shanghai shortly before said Wilfley; 
and after said Wilfley’s arrival, was with him and almost constantly 
in his company. 

That said Bassett on his arrival said he intended to take up private 
practice and duties in the United States court for China; and that he 
intended to live with said Judge Wilfley upon his arrival at Shanghai. 

Thikd Charge: That the said Lebbeus R. Wilfley, while holding 
the office of judge of the United States court for China, and while act¬ 
ing in such capacity, by spoken and written words and by his actions, 
has libeled and defamed your petitioner and the other members of the 
American bar named in charge 1, in that he maliciously and without 
cause charged them with being disreputable practitioners unworthy 
of practicing their profession and urging and securing the publication 
of articles in the public press containing such charges and libels, 
which he, the said Wilfley, knew to be false and untrue; and your 
petitioner alleges and believes that this was done for the purpose of 
discrediting your petitioner and said attorneys, so that they could not 
obtain relief from these wrongful and malicious actions of said 
Wilfley. 

Fourth Charge: That said Lebbeus R. Wilfley, while holding the 
office of judge of the United States court for China, and while acting 
in such capacity, was guilty of oppression and a gross misuse and 
abuse of his powers as judge of said court, in that after having been 
forced to admit your petitioner to practice as an attorney and coun¬ 
selor of his court he, the said Wilfley, threatened to disbar your peti¬ 
tioner as a practicing attorney and counselor of said United States 
court for China, and to ruin him in his good name and standing in his 
profession in Shanghai, unless your petitioner would accede to his, 
said Wilfley’s, demand that your petitioner should dissolve his part- 


CHAEGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


5 


nership with Francis M. Brooks, esq., a reputable attorney of the 
consular courts of China and of various State and Federal courts of 
the United States of America. 

That upon your petitioner’s refusal to accede to the demands of 
said Lebbeus R. Wilfley that your petitioner should dissolve his 
partnership with the said Francis M. Brooks, said Wilfley did com¬ 
mence proceedings before himself to disbar your petitioner from 
practicing in the United States court for China, on the pretended 
charge that your petitioner had committed perjury in an affidavit 
filed in the United States circuit court of appeals, upon an appeal 
from the United States court for China in the case of one S. R. Price, 
in which case said Price was, as your petitioner verily believes, 
wrongfully convicted of an assault with a deadly weapon, and in 
which case said Wilfley had unlawfully and unjustly refused to admit 
said Price to bail. 

That said Wilfley well knew at the time that he admitted your 
petitioner to practice in said United States court for China, that your 
petitioner had made such affidavit, and that such disbarment pro¬ 
ceedings against your petitioner were false and fraudulent, and 
intended by said Wilfley to oppress and ruin your petitioner because 
he had refused to dissolve his partnership with said Brooks. 

That said Wilfley after making such charge against your petitioner 
and signing a citation, demanding that your petitioner should appear 
before the said Wilfley and show cause why your petitioner should not 
be disbarred, when your petitioner did appear and protest and object 
against the unfairness and injustice and groundlessness of such charge, 
and said judge at once overruled said objections; and when your 
petitioner thereupon filed an answer and demanded an immediate 
hearing, said Wilfley refused to grant a hearing and adjourned the 
case indefinitely for the alleged purpose of taking testimony in the 
State of California. 

That said Wilfley well knew that said petitioner had committed 
no wrong or crime, or made any statement in his affidavit that was 
untrue; and was well aware of said affidavit and its contents long 
before he admitted your petitioner to practice in his said court; and 
that said pretended and false and fraudulent proceedings so brought 
by said Wilfley to disbar your petitioner were merely a tyrannical, 
unjust, and unlawful act of oppression and misuse and abuse of the 
powers of said judge, for the purpose of ruining and disgracing your 
petitioner in Shanghai, because your petitioner had refused to be 
subservient to the demands of said Wilfley and abandon his legal 
associate and partner, Francis M. Brooks, esq., who had studied 
law at Harvard Law School, was a lawyer of high reputation and 
standing, and a citizen of the United States of the best of character 
and reputation. 

Fifth Chaege: That said Lebbeus R. Wilfley, while holding the 
office of judge of the United States court for China, and while acting 
in that capacity, has misused and abused the powers of said court 
and has willfully and knowingly held in disregard the obligations 
devolving upon him as judge, and has brought the United States 
court for China, its process and decisions, into odium and contempt 
among not only all right-thinking Americans, but all people of standing 
of every nationality in that country: 

(1) In that on or about the 17th day of June, 1907, an order was 
issued by the said United States court for China commanding an 


6 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


American citizen, one J. W. Winklebach, if found within the juris¬ 
diction of the United States court for China, to appear before His 
Britamiic Majesty^s supreme court for China and Korea, and to sub¬ 
mit to the jurisdiction of said court, contrary to the statutes of the 
United States whereby all American citizens sued have the right to be 
tried before their own court and from’ the decision thereof to take an 
appeal to the appellate court in California. 

(2) That said Wilfle/in the case of M. J. Connell & Co. against R. F. 
Daly issued an order requiring said R. F. Daly to appear on the 23d 
day of January, 1906, at 10 o’clock, to show cause why a receiver 
should not be appointed for the business that said Daly was conduct¬ 
ing as restaurant keeper. 

That said Daly was not served with said notice until 8.30 p. m. on 
January 22, 1907, and upon his appearing in court on January 23 and 
stating this fact, and that he had no time to obtain an attorney, and 
that no summons in any action had been served upon him, but merely 
an order to show cause why a receiver should not be appointed and 
asking that the matter might be adjommed until the afternoon or 
until next morning, when he, the said Daly, might have a chance to 
obtain legal advice, said judge refused to grant said adjournment and 
appointed as said receiver an employee of Mr. Connell’s, the plaintiff, 
who was represented by Mr. Bassett, the district attorney, and said 
Daly was turned out of said business, although he denied that said 
Connell was a partner or had any interest in said property or business, 
and without receiving any trial or having any opportunity to obtain 
counsel to represent him the business of the said Daly was taken away 
from him and said Daly turned out on the streets penniless. 

(3) That in June, 1906, one M. S. Friede, an American citizen, 
began a suit in the United States consular court for China, at Shang¬ 
hai, against the firm of Getz Bros. & Co. (a corporation) for about 
$25,000. 

That said Friede remained in Shanghai until about November, 1906, 
awaiting the hearing of his case, when he was obliged to leave for the 
United States to attend to his business there. 

That after said Friede had left for the United States Arthur L. Bas¬ 
sett, the district attorney of said United States court for China, and 
who appeared as attorney and counsel for the defendants, Getz Bros. 
& Co., in the absence of Friede applied to said Wilfley, and said 
Wilfley set down said cause for January 7, 1907, against the protest of 
Mr. N. C. Home, counsel for said Friede, said Home being an English 
lawyer retained by said Friede. 

That thereafter on the 7th day of January, 1907, said Judge Wilfley 
sitting without a jury took the testimony of defendants’ witnesses, 
and at the request of the said Arthur L. Bassett, counsel for defend¬ 
ants, ordered a commission to be appointed to take the testimony of 
Mr. Friede and his witnesses in St. Louis, in the State of Missouri. 
That neither said Friede nor Getz Bros. & Co. resided or had any 
business agencies in St. Louis, and there was no reason for the selec¬ 
tion of St. Louis as the place for taking testimony. Getz Bros. & Co. 
have their principal place of business in San Francisco, Cal., and said 
Friede, so far as your petitioner knows and has been informed, is 
engaged in business in Russia and China. 

That said Friede did not appear in St. Louis, Mo., and that about 
the 7th day of July, 1907, said Wilfley, without any further notice to 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


7 


Friede, on the testimony taken on the 7th day of January, 1907, 
in Mr. Friede’s absence, rendered judgment, dismissing the complaint 
of said Friede and awarding the defendants, Getz Bros. & Co., the sum 
of $37,500 as against Friede, which judgment is in full force and effect. 

Sixth Charge; That said Lebbeus R. Wilfley while holding the 
office of judge of the United States court for China, and while acting^ 
in that capacity, maliciously and contrary to law, refused S. R. Price, 
an American citizen entitled to protection by the laws of his country, 
the right to bail, pending his appeal from conviction before said 
Wilfley without a jury, on a charge of assault. That said Wilfley 
committed said Price to jail unjustly and unlawfully; and unjustly 
and unlawfully refused to accept bail for said Price, pending said 
appeal; and that said Wilfley neglected to obey the mandate of the 
United States circuit court of appeals for the ninth circuit, directing 
him to release said Price upon bail, until compelled thereto by a 
second and peremptory order of said court reaffirming its former 
order. 

That said Price was late sergeant of the First U. S. Volunteer Cav¬ 
alry, and a veteran of the Spanish war, and a citizen of the United 
States sojourning in Shanghai, and was charged with the crime of 
assault with a deadly weapon. 

That the evidence showed that said Price had pointed an unloaded 
weapon at a person who was attacking him with a large carving knife, 
because said Price was protecting a lady from insult. 

That said Price was defended by an Italian lawyer, as the American 
lawyers who had charge of his case were not allowed by said Wilfley 
to practice in said court; and your petitioner, being one of said 
American lawyers, was threatened by said Wilfley with a charge of 
contempt of court if he dared to appear in court on the trial of said 
Price and advise the said Italian lawyer who knew little or nothing 
about the American procedure and laws. 

That contrary to the evidence in the case, said Price was convicted 
by said Wilfley and sentenced to a term of imprisonment at hard labor 
for a period of six months at the Shanghai consular jail. 

That said Price, through his Italian atto ney, immediately filed 
notice of appeal to the United States circuit court of appeals for the 
ninth circuit, and perfected said appeal, and asked that bail be fixed 
pending the said appeal, offering sureties for any reasonable amount 
or cash bail for any amount up to $10,000 pending said appeal, which 
y)peal could not be heard for some time as said appellate court was in 
California, where all the papers must he sent and the appeal argued. 

That said Judge Wilfley announced from the bench that having the 
power to make rules for his court he would promulgate a new rule, 
which he then read as follows: 

After conviction, on appeal, a prisoner may be admitted to or denied bail in the 
discretion of the court. 

That said Wilfley then refused to allow bail for said Price, then a 
prisoner before him, and despite the perfecting of his appeal and 
despite that incarceration nullified the right of appeal given him by 
law and made it certain that said Price would undoubtedly undergo 
a long imprisonment whether his appeal was sustained or not. 

That thereafter, on the 21st day of February, 1907, the United 
States circuit court for the ninth circuit issued an order to said judge.. 


8 


CHAKGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


and said order was cabled to the United States court for him, ordering 
said court to admit Price to bail upon his entering into a sufficient 
bond in the sum of $4,000 for his appearance when required. 

That said Wilfley did not obey said mandate of the said United 
States circuit court of appeals, but the clerk of his court cabled to the 
United States circuit court for the ninth circuit asking said court to 
reverse its mandate, stating that bail was refused to said Price 
because his appeal was frivolous, and that said Price remained incar¬ 
cerated in the consular prison of Shanghai until the 25th day of 
February, 1907, when the circuit court cabled a second order, reaf¬ 
firming its former order, for the release of said Price upon bail. 

That thereafter, and on or about the 6th day of November, 1907, 
the United States circuit court of appeals for the ninth circuit reversed 
the conviction of said Price by Judge Wilfley. 

Seventh Chakge: That said Lebbeus K. Wilfley while holding 
the office of judge of the United States court for China, and while 
acting in such capacity and in disregard of the rights of the defendant 
before him, in the case of Victorino Torres, a Filipino, subject to the 
jurisdiction of said court, allowed and permitted the prosecuting 
attorney, Arthur L. Bassett, to act as an official interpreter of defend¬ 
ant’s testimony during said trial, as well as prosecutor of the case, 
and thereby ignored the constitutional and legal right of said defend¬ 
ant, and prevented him receiving a fair and impartial trial, convicted 
him, and sentenced him to imprisonment for three years. 

. All of said charges your petitioner is ready to prove by oral evidence, 
by affidavits and documents, before you or any person appointed by 
you to hear and determine said charges, upon reasonable notice being 
given of said examination and hearing, and a reasonable time in 
which to produce witnesses, and upon the hearing of such charges 
your petitioner prays that said Lebbeus R. Wilfley be removed from 
the office of judge of the United States court for China. 

Dated 19th day of November, 1907. 

Respectfully submitted. 

Lorrin Andrews. 

Kindly address any communications care of my mother, Mrs. Adele 
M. Andrews, 367 Grand avenue, Brooklyn, N. Y. 


March 2, 1908. 

Sir: In answer to your petition dated November 19, 1907, for the 
removal of Judge Wilfley, I am instructed to send you herewith copies 
of Secretary Root’s report upon the same, in the shape of a letter 
addressed to the President, and of the letter of the President in answer 
thereto. The President directs me to state that there is no merit 
whatsoever in your charges, and that the investigation has shown that 
Judge Wilfley’s services have been of the highest value to decency and 
morality; and that the assaults made upon him are due not to any 
shortcomings on his part, but to his vigorous and aggressive warfare 
against dishonesty and vice. Your petition is accordingly denied. 
Very truly, yours, 

Wm. Loeb, Jr., 
Secretary to the President. 

Mr. Lorrin Andrews, 

The New ^yillard, Washington, D. C. 



CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


9 


International Committee of Young 

Men’s Christian Associations, 

New York City, February 27, 1908, 

Mr. President: I have heard with astonishment that an attempt 
is being made to impeach Judge L. R. Wilfley, of the United States 
court for China. 

I have just returned from Shanghai, China, where I resided for ten 
years as the foreign secretary of the international committee of 
Young Men’s Christian Associations. 

I am thoroughly familiar with the conditions which confronted the 
United States court, the methods adopted by Judge Wilfley, and the 
results obtained. 

The vicious element among the American residents had been for 
so long uncurbed that they were a serious menace not only to our 
prestige but to our trade. As a result of the vigorous methods pur¬ 
sued by Judge Wilfley and the officers of the United States court, the 
treaty ports of China have been largely rid of these bad elements, and 
no others dare to come in. 

The judge is an honest, able, -and fearless officer of the law and has 
inaugurated a new era for Americans in China. He has the support 
of all Americans in China except those who are defeated litigants and 
those who want the old regime of unpunished crime to continue. 

I do not hesitate to say that it is outrageous that a fearless and 
incorruptible judge should be in the prosecution of his duties thus 
harried by persons who have largely felt the strong hand of the law 
upon them, and still more outrageous that even a single Member of 
Congress should lend himself to the support of such unwarranted 
proceedings. 

I trust I may express the hope that after satisfying yourself of the 
correctness of these facts you will, Mr. President, give our court in 
China the benefit of your powerful support. 

Very respectfully, your obedient servant, 

Robert E. Lewis, 

Secretary of the International Committee. 

The President, 

The White House. 


LTnited States Court for China, 
Shanghai, China, November 11, 1907. 

Hon. Elihu Root, 

Secretary of State, Washington, D. C. 

Sir: I have the honor to acknowledge the receipt of your letter 
of June 11, 1907, in which you instruct me to report to the Department 
all actions of every kind taken by the United States court for China. 
You directed that in this should be included full reports of all the 
cases decided before the court, or, in default of any better report of 
the proceedings, properly arranged clippings from the newspapers 
giving the best account of the cases. You also instructed me to 
make such comments and suggestions as I might deem useful to 
enable the Department to understand the situation in China. In 
reply to your instructions, I respectfully submit the following 
report: 



10 


CHAEGES AGAINST JUDGE LEBBEUS K. WILELEY. 


The United States court for China was formally opened on December 
17, 1906. After receiving the commissions of the several officers of 
the court, the following rules were published: 

The first term of the United States court for China at the city of Shanghai, China, 
will begin on January 2, 1907, at 10 o’clock forenoon, in the American consulate- 
general in the said city. 

The procedure of the court shall be in accordance, so far as practicable, with the 
existing procedure prescribed for the United States consular courts for China until 
changed or modified by order of court. , 

American attorneys who desire admission to practice in this court shall qualify by 
furnishing a certificate of good moral character satisfactory to the court and by passing 
an examination on such branches of the law as may be prescribed by the court. Ex¬ 
aminations shall be public and shall be held in the American consulate. They may 
be written or oral. 

A written examination for admission to practice in this court will be held in the 
American consulate at Shanghai on Monday, December 24, 1906, at 9 o’clock forenoon, 
The examination will embrace the following subjects: (1) Equity, (2) evidence and 
pleading, (3) contracts, (4) torts, (5) international law (conflict of laws), (6) criminal 
law, (7) United States Revised Statutes, sections 4083-4130, and act of Confess of 
June 30, 1906, creating a United States court for China, (8) corporations, (9) wills and 
administration of estates. 

Persons desiring to take this examination shall file application, accompanied by 
certificate of moral character, with the clerk of the court on or before December 22,1906. 

A foreign legal practitioner certified by an official of his own nationality vested with 
judicial authority may be admitted by courtesy to practice in this court. 

EXAMINATIONS. 

In compliance with the rule of court requiring the American attor¬ 
neys who desired to practice in the court to qualify by furnishing a 
certificate of good moral character satisfactory to the court and by 
passing an examination in such branches of the law as the court 
should prescribe, eight attorneys presented their written application 
for permission to take the examination. The examination was held 
on December 24, 1906, at which time the following applicants took 
the examination: Lorrin Andrews, F. M. Brooks, Stirling Fessenden, 
H. H. Hart, C. R. Holcombe, T. R. Jernigan, Edwin Lamme, and 
W. L. Rodgers. Of the above-named applicants Messrs. Stirling 
Fessenden and T. R. Jernigan qualified. A copy of the examination 
questions is attached hereto (Exhibit 1). 

Other examinations were later held at Shanghai and Tientsin. At 
Tientsin there were three applicants, E. P. Allen, W. S. Fleming, and 
G. W. Drolette, of whom the first two qualified. Later W. H. Heen 
and Lorrin Andrews took the examination at Shanghai and were 
admitted to practice. The court has announced that the next 
regular examination will be held at Shanghai on December 2, 1907. 

SESSIONS. 

The court has held sessions as follows: 

At Shanghai, from January 2, 1907, until March 19, 1907. 

At Tientsin, from March 27, 1907, until April 20, 1907. 

At Hankow, from April 27, until April 29, 1907. 

At Shanghai, from May 1, 1907, until May 17, 1907. 

At Canton, on May 24, 1907. 

At Shanghai, from June 7, 1907, until September 4, 1907. 

CASES. 

Up to the close of the term of court at Shanghai on September 4, 
1907, there have been filed in the court 21 criminal cases, 44 civil 


11 


( 

CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 

cases, and 55 estates for probate. Attached hereto is an exhibit 
showing the numbers, titles, and the nature of the cases filed 
(Exhibit 2). 

BAR EXAMINATIONS. 

The action of Judge Wilfley in requiring lawyers who wished to 
practice in the court to qualify by furnishing a certificate of good 
moral character and by passing an examination would probably 
have caused no comment had more of the candidates qualified. It 
was said by some that the court should have adopted a rule which 
would have admitted to practice all persons who could show certifi¬ 
cates of admission to the several State and Federal courts at home. 
However, a knowledge of the conditions which the court had to meet 
will show that the action taken was the proper one. The fact that a 
rule has been adopted in a large number or courts at home is not a 
sufficient reason why it should have been adopted here. The con¬ 
ditions at home and here are different. At home the courts have 
been long established and are all institutions of one sovereignty. 
The practitioners are usually well known to the judge of the court, 
and when a stranger presents himself he is vouched for by well- 
known resident lawyers, upon whose recommendations the judge may 
rely. Furthermore, at home the admission of an improper person is 
not so serious a matter as it is here. There are no bar associations in 
China to keep up the standards of the practitioners, and here public 
opinion does not interest itself in such matters. The greater part of 
a lawyer’s business is transacted in his office and only a small part comes 
into court. 

In the United States, where the courts are old institutions and 
the laws are well established, people are loath to enter into litigation. 
In China, where each nationality maintains its own courts and a 
great confusion and diversity exists in the laws, a controversy 
will only be taken to court as a last resort. Furthermore, the Ameri¬ 
can court is only one of the many courts in Shanghai and only hears 
a percentage of the cases tried here. However, an American lawyer 
is permitted to practice in the courts of other nationalities upon pre¬ 
sentation of a certificate that he has been admitted to practice in the 
American court. An attorney, however, no matter in what court 
he is practicing, can only be called to account by the court of his 
nationality. The several courts, therefore, by admitting attorneys 
to practice and by certifying them to the courts of other nationalities 
must necessarily vouch for the person so admitted and certified. 
Under these circumstances the obligation rests upon a court to deter¬ 
mine well that the men whom it certifies and recommends to the 
courts of other nationalities as a person qualified to be an attorney 
at law is in fact a proper person. The new judge, upon his arrival 
in Shanghai, found practicing before the consular court several men 
who had certificates to practice in the courts at home, but whom he 
considered unfit to perform the duties of the office of attorney at law. 

One lawyer had been a member of a firm of attorneys m the Philip¬ 
pine Islancls and had been a party to transactions for which, after his 
departure from Manila, his partners were suspended from the prac¬ 
tice. Another of the lawyers had left the Hawaiian Islands to avoid 
prosecution. He had been indicted in the Federal courts there, 
together with a large number of Japanese, for having entered into a 
conspiracy to violate the Edmunds Act. He was accused of-being the 


12 


CHAEGES AGAINST JUDGE LEBBEUS K. WILFLEY. 


attorney for a so-called ‘^Ten-Dollar Club/’ which had been organ¬ 
ized for the purpose of guaranteeing immunity from prosecution for 
a large number of Japanese prostitutes in Honolulu. The indictment 
against him was quashed by reason of the fact that the prosecuting 
witness escaped from the Hawaiian Islands and returned to Japan. 
According to the information which has been furnished by the district 
attorney of Hawaii, this witness was later extradited and brought 
back to Honolulu for trial, whereupon the attorney against whom the 
indictment had been quashed by reason of the absence of the witness 
entered into an agreement with the district attorney that he would 
leave the islands and not return if the new prosecution should not be 
instituted against him. This attorney came to Shanghai and has 
been here since practicing before the consular courts. His partner 
also came from Honolulu, and must have known the reputation of the 
man he came here to associate with in the practice of his profession. 
It is not strange, therefore, that the court should have required such 
men who desired to practice before it and to be certified to the courts 
of other nationalities that they should show their qualifications and 
be properly vouched for. The act creating the court had made no 
mention or the qualifications of the attorneys who should practice in 
the United States court for China. The court in requiring the attor¬ 
neys to show their qualifications only exercised a right which inheres 
in every court and followed the law prescribed by Congress for the 
courts of the District of Columbia, by section 218 of its code, and made 
such rules as it deemed proper ‘‘respecting the qualification, exami¬ 
nation, and admission or attorneys to practice in said court.” 

NEWSPAPER REPORTS. 

All the sessions of the court are attended by newspaper reporters, 
and the four daily papers printed in English in Shanghai give full 
reports of the court’s proceedings. Attached hereto is a compilation 
of newspaper clippings referring to the work of the court, from which 
clippings may be learned what action the court has taken in each case. 
(Exhibit 3). Some of the cases, however, deserve special .mention. 

THE CRIMINAL CASES. 

The McCord case .—The first case which came before the court was 
the case of the United States v. li. J. McCord. Before the case came 
on for hearing the defendant, McCord, who was charged with obtain¬ 
ing money under false pretenses, had been released on bail. At the 
trial, on January 8, 1907, the defendant was found guilty and notified 
that sentence would be passed upon him the following morning. Dur¬ 
ing the night, however, McCord fled from the jurisdiction of the court. 
This brought at once to the knowledge of the court that it was very 
easy for a person to escape from its jurisdiction, and also a knowledge 
that release upon bail in Shanghai was tantamount to a permanent 
release. Shanghai is the largest commercial center in China, and, 
daily, boats flying the flags of various nationalities are leaving for all 
parts of the world. Our extradition treaties with foreign nations 
have been construed by the Department not to extend to our extra¬ 
territorial jurisdictions in China. Under this construction, therefore, 
a fugitive from justice who has escaped to a foreign jurisdiction can 
not be returned to China for trial or imprisonment, and at present 
even the American authorities in China can not secure the return from 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 13 

the United States of a fugitive from justice who is found therein. 
Once out of the jurisdiction of this court, therefore, there is no way to 
return a fugitive for trial or imprisonment. The McCord case and 
the Adsetts case, a report of which will be found in the files of the 
Department, in which a lugitive from another country was found in 
China, both show the necessity of some legislation providing for the 
return to and surrender by the American authorities in China of fugi¬ 
tives from justice. 

The Price case .—Shortly after the escape of R. J. McCord, S. R. 
Price was convicted of having committed an assault and was sen¬ 
tenced to imprisonment for six months. His attorney immediately 
gave notice of appeal to the circuit court of appeals in San Francisco 
and asked that defendant be released upon bail. An appeal was 
granted, but the admission of bail was denied. The act of Congress 
of June 30, 1907, creating the United States court for China provided 
that the procedure of the court shall, as far as practicable, be the same 
as the procedure then existing in the consular courts in China, in 
accordance with the Revised Statutes of the United States. How¬ 
ever, the judge of the United States court was given authority to 
modify and supplement said rules of procedure. The intention of 
Congress in the matter of appeal and admission to bail is evidenced 
by the provisions of section 4095 of the Revised Statutes of the United 
States, which is as follows: 

When any final judgment of the minister to China, or to Japan, is given in the exer¬ 
cise of original or of appellate jurisdiction, the person charged with the crime or offense, 
if he considers the judgment erroneous in point of law, may appeal therefrom to the 
circuit court for the district of California; but such appeal shall not operate as a stay 
of proceedings unless the minister certifies that there is probable cause to grant the 
same, when the stay shall be such as the interests of justice may require. 

Section 66 of the regulations of the minister prescribing the pro¬ 
cedure for the consular courts, which were passed in 1864, and which 
existed and had the force of law at the time the new court was organ¬ 
ized, provided: 

Sec. 66. After conviction and appeal, the prisoner may be admitted to bail only by 
the minister. 

This ruling was modified by the court to read as follows: 

After conviction and appeal, the prisoner may be admitted to or refused bail in the 
discretion of the court. 

The following are the reasons the court gave for refusing to admit 
Price to bail: 

The law creating this court provides that the procedure of the said court shall be in 
accordance, so far as practicable, with the existing procedure prescribed for consular 
courts in China in accordance with the Revised Statutes of the United States; pro¬ 
vided, however, that the judge of the said United States court for China shall have 
authority from time to time to modify and supplement said rules of procedure. Rule 
of procedure 66 says: “After conviction and appeal, the prisoner may be admitted to 
bail only by the minister. ” It will become necessary for the court to exercise its right 
under the law, to modify this regulation, and the court has decided to make a modifi¬ 
cation of this section as follows: “After conviction and appeal the prisoner may be 
admitted to or denied bail in the discretion of the court.” In many instances appeals 
may be taken for frivolous or unsubstantial reasons, for no other purpose except to gain 
delay and, if possible, to defeat the ends of justice. In cases where it is manifest to 
the court that the' accused is guilty of the crime charged and that no serious question 
of law or fact entered into the trial of the case, it is but proper that the matter of admit¬ 
ting to bail after conviction should be left to the discretion of the court. It is true 
that the distance is great between China and the United States, where the court of 


14 CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

appeal sits, and it will require considerable time to have rulings of this court reviewed 
by the appellate court. That is a very good reason, as counsel states, for admitting 
to bail. It is also a very good reason for refusing bail in these cases above indicated. 
It is not fair to presume that the court will refuse a prisoner bail when there is substan¬ 
tial doubt as to his actual guilt, but if after hearing all the testimony in the case and 
after hearing arguments of counsel, the court is convinced that the questions to which 
exception are made are frivolous and unsubstantial, the ends of justice will be better 
subserved by the punishment following speedily on the heels of the crime than by 
permitting a long delay. The court has decided to enforce the modification of sec¬ 
tion 66 of the regulations to the effect which I have stated. The appeal will be granted 
in this case, but admission to bail will be denied. The marshal will take charge of the 
prisoner and commit him to jail. 

Immediately after the court took this action Mr. Lorrin Andrews 
went to San Francisco to obtain the release of Price on bail. The 
evidence in the case had been taken by a stenographer employed 
by the firm to which Mr. Andrews belonged. The stenographer 
has made an affidavit that, in preparing the copy of the transcript 
for Mr. Andrews to take with him to San Francisco, he was instructed 
by his employers to omit from the record the reasons given by the 
€ourt for refusing to admit the defendant to bail pending appeal. 
Upon his arrival in San Francisco Mr. Andrews filed in the court of 
appeals a petition for a writ of habeas corpus for admission to bail, 
and mandate, and, in support of his petition, an affidavit was filed 
by one Bert Schlesinger, upon the information furnished him by 
Mr. Andrews. The petition was granted and Price was admitted to 
bail in the sum of $4,000. It has since developed, however, that 
the transcript of the record which Mr. Andrews took with him was 
not filed in the appellate court and that the statements made in said 
petition and affidavits upon which the appellate court based its 
action were false. There is now pending in this court a proceeding, 
investigating the professional conduct of Mr. Andrews in this matter. 
Though the release of Price by the appellate court appeared to be a 
reversal of the holding of the United States court for China in refus¬ 
ing bail, from the wording of this mandate, it seems that the matter 
was brought before the circuit court of appeals in such a way that the 
holding of Judge Wilfley was not considered by that court. 

The Biddle case .—The next case of special interest to come before 
the court was the Biddle case. It was early seen that the laws to be 
enforced were in such general terms that the court would probably 
experience difficulty in construing them. The act of Congress creat¬ 
ing the court provided that the court should enforce the statutes of 
the United States in so far as applicable, the common law, and the 
regulations which should be promulgated by the minister. The stat¬ 
utes of the United States have little application in China. The term 
common law^’ as used in the statute was so indefinite that it at 
once presented difficulties. This was a court of the United States 
and there is no such thing in the United States as a national common 
law. What common law, then, did the statute refer to? Certainly 
not to common law of England, and it did not mean the common law 
of Massachusetts or of Maryland, nor did it mean the common law 
of any particular State. The argument was made that the construc¬ 
tion should define a law common to all the States. Each State by 
legislation or by judicial interpretation has defined what its common 
law is, but the definitions are not uniform. There were, however, 
certain laws which, independent of legislation, would have continued 
in force in the colonies, and it was this body of law that it was argued 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 15 

should be held to be the common law within the meaning^ of the 
statute. Still, such a definition would have only given the laws as 
they existed at the time of the Declaration of Independence, so it 
was necessary, in order to nikke the definition a practical one, that 
it should include the development of the laws since that time. In 
this case the court therefore defined the common law as follows: 

_ The term “common law” as used in the statute is interpreted to mean those prin¬ 
ciples of the common law of England and those statutes passed in aid thereof, including 
the law administered in equity, admiralty, and ecclesiastical tnbunals, which were 
adapted to the situation and circumstances of the American colonies at the date of 
the transfer of sovereignty as modified, applied, and developed by the decisions of the 
State courts and the decisions of the United States courts, and incorporated generally 
into the statutes and constitutions of the States. 

The court therefore held that statute 30, George IV, which was 
enacted seventeen years before the Declaration of Independence and 
was passed to aid the common law by supplying the deficiencies of the 
crime of cheating, was within the meaning of the term as used in the 
act of Congress. Biddle was found guilty and imprisoned. 

The cases of Price and Biddle attracted considerable attention in 
China by reason of the fact that both parties were well known here. 
Price has been known throughout the Orient for a number of years. 
He was prosecuted in Manila several years ago for running the Country 
Club, a well-known gambling house there. His establishment was 
closed up there, and he was sentenced to imprisonment. He then 
came to Shanghai and took over the Alhambra, the largest gambling 
house in the Orient. This place is located just outside the limits of the 
international settlement. Several attempts have been made by the 
municipal council to have it closed, and to prevent gambling therein, 
but the place has been kept open by reason of the fact that the Spanish 
authorities have given it their protection. Although the place is 
under Spanish protection, and is presumably owned by a Spaniard, 
it is generally believed here that Price is the real owner. Biddle*was 
a rival of Price. For some time he had been the manager and owner 
of a majority of the stock of the Hotel Metropole; he was also the 
lessee of the Alcazar, a resort similar to the Alhambra. Both men 
were prominent in gambling circles, and their conviction and sen¬ 
tences of imprisonment has had a good effect in inspiring uneasiness 
among the criminal classes of the community. 

The American girV’ cases .—The effect the last action in sentenc¬ 
ing Price and Biddle to imprisonment has had upon the bad element 
of the community was evidenced by the attitude of the defendants in 
the next cases which came before the court. At the conclusion of the 
Biddle trial informations were filed against eight of the well-known 
bawdy-house keepers in Shanghai for the common-law crime of keep¬ 
ing a disorderly house. Although this action was not entirely unex¬ 
pected, it has probably been the subject of greater comment than 
anything else the court has done. For many years the business of 
prostitution has been a well-known feature of Shanghai life, and 
during recent years American women have come to the East in such 
numbers that the term ‘‘American girl” has become synonymous with 
“prostitute” in China. The influence of this class was probably 
greatest in Shanghai, although in other cities a large number of the 
women were to be found. Their influence was felt in the social, 
political, and commercial life of the settlement. When the informa- 


16 CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 

tions were filed against tlie keepers of the houses the North China 
Daily News, the oldest and probably the largest English newspaper 
in China, published an extra, and it is said that the excitement which 
prevailed in the 'Shanghai clubs was greater than that occasioned by 
the outbreak of the Russo-Japanese War. These women kept large 
and luxuriantly furnished houses, most of which had been built for 
their purposes, and they daily appeared on the principal driye of the 
city in magnificent turn-outs. Within a few hours after the informa¬ 
tion had been filed they had -deposited in cash bonds more than 
$15,000. Four of the accused pleaded guilty, and, having made a 
promise to the court that they would leave China and not return as 
prostitutes or keepers of,houses of prostitution, were each fined $1,000 
Mexican currency. Two of the defendants tried to escape from the 
jurisdiction of the court by producing certificates of citizenship which 
had been issued after their arrest by the Spanish consul-general in 
Shanghai. The court held that while these certificates were evidence 
of citizenship they were not conclusive, and that the question of 
citizenship would be inquired into. Thereupon the two certificates 
were immediately withdrawn and the defendants admitted that they 
were Americans and entered pleas of guilty to the charges. One 
defendant proved that she was a German by birth, and the case 
against her was dismissed. The other endeavored to prove that she 
was English, but failed. All of the women vdio were convicted 
promised in open court that they would leave Shanghai and not 
return as prostitutes or keepers of houses of prostitution. 

When the informations were filed against the keepers of the 
houses, the inmates were sent for by the district attorney. In the 
light of what had been done it is needless to say that they had become 
panic-stricken, and in a few days all the women who had been known 
as ^‘American girls” had left the jurisdiction of the court. Shortly 
thefeafter, when the court went to Tientsin, it was found that its 
action in the above cases had been felt there. All of the American 
houses of prostitution and gambling houses in Tientsin were closed^ 
without the necessity of prosecution, and no prosecutions were 
necessary in Hankow, since the houses had been closed and most of 
the women had fled before the court arrived at that port. The effect 
of these prosecutions has without doubt been good. At present not 
a single lewd woman within the jurisdiction of this court admits she 
is an American. I do not mean to say that there are no Americans 
aniong large number of prostitutes in China, but not one is now 
known as an American girl.” Of the women against whom the 
prosecutions were brought, five of them have by marriage attempted 
to become subjects of other nations and have returned to Shanghai. 
This, of course, tends to destroy the beneficial results of the prosecu¬ 
tion, since, although it is believed that they are not under the juris¬ 
diction of the American court, they have for a number of years been 
known as American girls.” It is said that these women boast of the 
fact that they have evaded our jurisdiction and are now protected by 
the other nations. What the attitude of the other nations in this 
matter will be remains to be seen. However, it might be mentioned 
that on a recent date the gambling houses, the Alhambra and Alcazar, 
which places were also popular resorts for these women, have been 
ordered to be closed by the consuls under whose protection they were, 
at the unanimous request of the consular body. 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


17 


REGULATION OF THE MINISTER. 

It was early ascertained that the common law did not make proper 
provision for dealing with the class of persons commonly known in the 
United States as ‘S^agrants.’’ The keepers of the disorderly houses 
could be punished under the common law, hut the inmates could not 
be reached. It was also a well-known fact that embezzlement was 
not a crime at common law. These matters were brought to the 
attention of the minister, who exercised the authority vested in him 
by section 4086 of the United States Revised Statutes and promulgated 
a regulation making embezzlement and vagrancy crimes in China. 
[Exhibit 4.] It was well understood that when this request was made 
doubts had been expressed by the Department as to whether the 
minister had authority to promulgate regulations containing sub¬ 
stantive law. However, the question of the minister’s authority 
could never be settled until properly determined by the courts. The 
above regulation contained the provisions usually found in the 
statutes of the various States of the Union, and there was no ques¬ 
tion that these laws were badly needed in China. Although they 
were promulgated last spring, and there have been a number of cases 
tried under them, the minister’s authority to promulgate them has 
not been questioned. 


THE CIVIL CASES. 

A large number of important civil cases have been tried by the 
court involving jurisdictional questions and questions of mercantile 
law. Some of these cases have been watched by the business commu¬ 
nity, and the decisions have been published generally throughout 
China. The court has followed the practice of reducing its decisions 
to writing before they are handed down, and a full text of these is 
published in the local newspapers. This enables the court to obtain 
for a nominal cost printed copies of the decisions, and these copies 
have been furnished to the diplomatic and consular officers and 
lawyers throughout the Empire. I shall attach hereto copies of the 
most important of the court’s decisions. [Exhibit 5.] 

The McDermid case .—In the case of McDermid v. McDermid the 
question was raised as to whether the court had jurisdiction to hear 
and determine matrimonial causes. This case was of interest by 
reason of the fact that several divorces and judicial separations have 
been granted in China by the consular courts, and a doubt had long 
existed as to the authority of these courts to take jurisdiction of such 
matters under the common law. In a long and well-considered 
opinion the court held that jurisdiction in matrimonial causes in 
England prior to the transfer of sovereignty was wholly in the 
ecclesiastical courts, and that in the United States the law was well 
settled that in the absence of specific statutory authority no court had 
authority to grant divorce. For these reasons the court refused to 
take jurisdiction of the case. 

The stoclc-gamUing case .—In the case of Toeg and Read v. Suffert 
the question was raised whether a contract between a broker acting 
as agent for a party who w^as operating on the stock exchange for the 
purchase and sale of stocks was a contract that could be enforced at 
common law. The evidence showed that the contract was one which 


29865—08-2 


18 CHAEGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

contemplated a ‘‘settlement upon differences/’ and that there was no 
intention on the part of the parties to deliver the stock, and this was 
known by the broker at the time the contract was made. The court 
held that while there was some doubt as to whether such a contract 
would.be enforceable under the old common law, that recent decisions 
of the United States Supreme Court had clearly held that such con¬ 
tracts were illegal and void as being contrary to public policy and 
that these decisions were binding in this court. 

The Rodgers case .—On the day Consul-General Rodgers left Shang¬ 
hai for Habana, George F. Curtis, esq., as attorney for Albert W. 
Cunningham, the administrator in the State of Maine for the estate of 
Henry H. Cunningham, filed a suit against him for $58,165.85. The 
case was filed so late that the marshal failed to get service on Mr. 
Rodgers before he left Shanghai. However, through the Department 
Mr. Rodgers authorized Mr. Boyd to admit service for him and ex¬ 
pressed a desire‘that the case be tried here. Mr. Rodgers, as consul- 
general, had admitted to probate in the consular court the will of 
Henry H. Cunningham, and the suit against Mr. Rodgers was based 
on the theory that his action in probating the said will was void, and 
that the will left by the deceased was not a valid will. The brother 
of the deceased had been appointed administrator for the estate in 
Maine and the action here was brought in the name of the brother 
as administrator. On behalf of the defendant there was filed a plea 
in abatement, denying the authority of an administrator appointed 
in Maine to maintain an action in this jurisdiction. The court held 
that for the purposes of administration of estates China was a com¬ 
plete jurisdiction and the plea was sustained. Notice of appeal was 
given but the appeal has not been perfected. 

PROBATE CASES. 

Roberts will case .—In the matter of the probate of the will of Capt. 
John Pratt Roberts the question was raised whether the court had 
jurisdiction to probate wills and administer the estates of Americans 
decedent in China. After making a thorough historical review of the 
common law on the subject, the court held that it had such jurisdic¬ 
tion. Perhaps no decision of the court has given such general satis¬ 
faction as the one in this case. The reason for this was that there had 
been great confusion in the minds of the courts and the people on this 
subject, and consequently there had been no uniformity of adminis¬ 
tration of estates m the various consular courts in China. Some 
estates had been dealt with judicially and others administratively. 
Some consular courts had undertaken to apply the common law, 
whilst others endeavored to enforce the law of the states of the domi¬ 
cile or origin of the deceased. The decision of the court in this case 
will require that all estates of Americans decedent in China will be 
administered either in the court itself or under its supervision, and 
will insure a uniformity in the methods of administration. 

The Allen case .—In this case the court held that the American law 
of domicile applied to residents of China. Doctor Allen had resided in 
China for forty-seven years and had expressed the intention of resid¬ 
ing here permanently. The court held he was domiciled here. This 
holding is contrary to the British rule as laid down in In re TootaFs 
Trust and for this reason attracted the attention of the residents here. 
The full text of this decision will be found attached to Exhibit 5. 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


19 


CONCLUSION. 

From the outset of the work of the court it has been evident that 
the laws are deficient in many respects and that the deficiencies could 
only be remedied by additional legislation. The ‘^common law/^ 
whatever that term comprises, is inadequate to meet the needs of the 
situation. The criminal law should be amplified so that no doubt 
should exist that obtaining money under false pretenses and embez¬ 
zlement are crimes, and a scale of penalties should be prescribed. 
The law of probate and the probate jurisdiction of the court should 
be fixed by statutory enactment. An extradition law should be 
‘extended to the extraterritorial jurisdiction of China to enable the 
United States to fidfill her treaty obligations and to prevent China 
from becoming an asylum for fugitives from justice. To obviate 
the difficulties which are certain to arise if the common law of real 
property is applied to estates held by Americans in China a statute 
should provide that realty held by Americans shall for the purpose 
of administration be regarded as personalty. The laws of divorce 
and bankruptcy and the jurisdiction of the court in such matters 
should be settled by legislation. Also the question of the court’s 
jurisdiction in admiralty matters should be set at rest. 

The work of the court has been more difficult by reason of the inad¬ 
equate quarters provided for the court. At present the court is 
quartered in the consulate and a single room is made to serve the 
purposes of court room, judge’s chambers, office for the marshal, . 
clerk, and district attorney, as well as court library. 

Mr. Taft, during his visit to Shanghai, in a speech recognized the 
needs of legislation supplying the defects in the existing laws and the 
necessity for better quarters for the court and consulate. The Amer¬ 
ican Association for China has prepared a memorial to be submitted 
to Congress, pointing out the needs for additional laws and a new 
building, and have petitioned that immediate action be taken on 
these matters. 

In spite of the difficulties which the court has had to face, the work 
of the court has in less than a year justified its existence. The court 
has been the object of bitter attacks by the element who have here¬ 
tofore profited by the lax enforcement of the laws in this community, 
but the China press has spoken in highest terms of its work [Exhibit 
6], and the best citizens are giving the court their hearty support. 

I am, sir, your obedient servant, 

A. Bassett, Distnct Attorney, 

In the United States court for China at Shanghai. 

Examination in criminal law, December 24, 1906. 

1. A was a sales clerk in B’s store. For a sale of goods he received 
a ten-dollar bill which he wishes to appropriate. To avoid detection 
he placed the bill, as was customary, in the cash drawer, but later 
in the day, during B’s absence, A took the bill from the drawer and 
appropriated it. What crime did A commit? 

2. During a heated dispute over business matters A called B a 
liar. B in anger raised a heavy cane in a threatening manner saying, 
‘Mf you were not an old man, Mr. A. I would break this cane over 
your head.” What crime, if any, is B guilty of? 


20 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


3. A, intending to rob B's dwelling house, made a proposition to 
C, a servant of B, whereby C agreed to unlock a certain door of the 
house. C informed B, who told C to act as he had agreed. C 
opened the door as planned, and at midnight A .entered, took B^s 
silver plate, but as he was leaving the house with the plate he was 
apprehended by an officer who was placed theref or that purpose. 
What crime was A guilty of? 

4. B, who suspected his clerk of stealing, placed a marked coun¬ 
terfeit five-dollar bill in the money drawer. The clerk, intending to 
steal the bill, took the same from the drawer. He was later arrested, 
and’ the marked bill was found on his person. What offense ? 

5. A strikes B with a cane. A is tried immediately and convicted 
of an assault and battery. It later develops that the striking had 
injured B’s skull, and as a result of the blow B dies within six months 
of the time he was struck by A. A is then indicted for homicide. 
A pleads the former conviction for assault and battery. Is the plea 
a good one? 

In the United States court for China at Shanghai. 

Examination in equity, December 2^, 1906. 

1. Give the origin of equity considered historically. 

2. What are the three great divisions of equitable jurisdiction? 

3. Is a court of equity controlled by precedent? Why? 

4. The D Railroad contracts with P that if P will deed to the road 
10 acres of land off the south side of his farm, the D Railroad Com¬ 
pany will build a station at X, where the road crosses the south line of 
P’s farm. P accordingly conveys the 10 acres to D; Later he con¬ 
veys the rest of the farm to C. D refuses to build the station according 
to the contract and C brings his bill. What decree? Why? 

5. What is the nature and function of a crossbill? 

6. What is the cypres doctrine ? 

7. Harriman and Hill are rivals for the control of the stock of 
Northern Pacific Railroad Company, the stock of which is listed on 
the New York Stock Exchange. Smith, a third party, owns the 
remainder, 2 per cent, of the stock. In consequence of the purchases 
made by Harriman and Hill in their endeavor to gain control of the 
stock its market value increased from $100 to $1,000 per share. 
Harriman, knowing that Smith had been in Europe and was ignorant 
of this rapid increase, went to Smith and made him an offer of $125 
per share for his stock, which Smith accepted. On learning the facts 
Smith refused to transfer the stock to Harriman and threatened to 
sell it to Hill at $1,000 a share. What are Harriman’s rights? 

In the United States court for China at Shanghai. 

Examination in evidence and 'pleading, December 2^, 1906. 

I.-EVIDENCE. 


1. Define relevancy. 

2. What is meant by a demurrer to the evidence at common law? 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 21 

3. In an action for personal injuries in an elevator accident alleged 
to have been caused by the negligence of the elevator hoy plaintiff 
offers the following evidence: 

(a) That the boy had been discharged for similar negligence at 
another hotel. 

(b) That he had been negligent on a former trip the same day. 

(c) That he was discharged immediately after the accident. 

Defendant offers to prove: 

(1) That the boy came to him well recoimhended. 

(2) That at the time of the accident he was running the elevator in 
the way usually adopted in other hotels. 

Which, if any, of these offers should be excluded? 

4. D is on trial for murdering his wife X. The prosecution claims 
that the murder was committed by administering a rare poison, and 
that D committed the murder to collect the insurance on the life of his 
wife. The prosecution offer to prove the following facts: 

(1) That D’s character is thoroughly bad. 

(2) That he has been married five times; that his wives have all 
died after a short illness; that the symptoms in each case were the 
same as in the case of the last wife, whose death is under investigation, 
and are the symptoms characteristic of the poison in question; that 
D has always insured the lives of his various wives and collected the 
insurance in each case. 

Is any of this evidence admissible? Why? 

5. Deceased having been shot while in the street several blocks 
from his home, ran home and, meeting his wife at the door, told 
her that he had been shot by the prisoner and that everything was 
growing black before his eyes. He then fell to the ground in an 
unconscious condition, but afterwards rallied and gave a full account 
of the affair to his wife and the physician who had been called in to 
attend him. While still engaged in doing this he died. When his 
wife first saw him after the shooting blood was streaming from a 
wound in his head and it was very evident that he could not live 
many minutes. The several declarations made by him were offered 
in evidence on one or more of the following grounds: (a) as forming 
part of the res gestae; (b) as dying declarations; (c) as statements of 
physical condition made to a physician. 

The court admitted them as dying declarations, submitting to the 
jury the question whether they were made in contemplation of death 
or not. Was this ruling correct? Give reason. 

II.-PLEADING. 

1. Name the writs used at common law in (a) real and mixed 
actions, (6) in personal actions. 

2. What is the essential difference between common law pleading 
and the so-called '‘code pleading?” 

3. A contract is entered into by the General Electric Company and 
the Waldorf-Astoria Hotel Company, both New York corporations, 
whereby the former agrees to furnish electricity to light the Waldorf- 
Astoria to be paid for by the ampere, the amount to be determined 
by meter measurement, the wattmeter being specified. The electric 


22 CHAKGES AGAINST JUDGE LEBBEUS K. WILFLEY. 

company installed a wattmeter and furnished electricity as per agree¬ 
ment for one month. When the bill was presented to the hotel com¬ 
pany payment was refused on the ground that the amount of elec¬ 
tricity shown by the bill had not been consumed. The electric 
company brought suit for the amount of the bill. The hotel com¬ 
pany filed a general denial. At the trial the plaintiff proved that 
according to the meter the amount claimed had been furnished. 
The defendant undertook to prove that there was a defect in the 
meter. The plaintiff objected. What should the court have held? 
Had the answer been a general issue under the common law, what 
should the ruling have been ? 

4. Wherein does certiorari differ from writ of error? 

In the United States court for China at Shanghai. 

Examination in torts, December 24, 1906. 

1. A man in the city of Washington, D. C., charged a woman with 
fornication. Fornication in the District of Columbia is not an 
indictable offense. What action has the woman and what are the 
necessary allegations and proofs in order to recover ? 

2. By reason of the fact that the screen on the chimney of A's mill 
was in bad condition sparks from his engine fell on the adjacent lot 
belonging to B. B notified A of this fact. The following day B 
placed a pile of lumber on his land near some inflammable waste 
material. A few days later a spark from A’s engine set fire to the 
waste material from which the lumber caught and was destroyed. 
Has he an action against A? 

3. Mr. Smith, a real estate agent and money lender, sent for Mrs. 
Jones, a widow, who has money to invest, and offers her a note of 
Brown for 15,000 secured by a first mortgage on a piece of real estate 
worth $10,000. Mrs. Jones asked Smith if the security was ample 
and if the loan was a good one. He advised her it was. As a matter 
of fact, the deed of trust securing the note had been released of record 
and this was then known by Smith at the time the sale of the note 
was made to Mrs. Jones. Brown was insolvent. Mrs. Jones sued 
Smith for the amount of the note. Is she entitled to recover? 
What is meant by the doctrine of caveat emptor? 

4. What are the essential elements of actual or positive fraud? 
Define constructive fraud. 

5. An employer of a gang of workmen ordered the foreman to 
replace a badly worn rope used by the gang in their work. The fore¬ 
man neglected to do so, and by reason of its worn condition the rope 
broke and an employee was injured. Has the injured employee an 
action against the employer? Give reasons. 

In the United States court for China at Shanghai. 
Examination in contracts, December 24 , 1906. 

1. The Philippine government entered into a contract at Manila 
with Farnham Boyd & Co., of Shanghai, for the construction of ten 
coastwise vessels to be constructed out of first-class materials and 


CHAEGES AGAINST JUDGE LEBBEUS B. WILFLEY. 


23 


paid for after inspection, trial, and acceptance at Shanghai by an 
expert of the Philippine government. The price was $1,000,000. 
The vessels were accepted after trial and inspection, but before pay¬ 
ment the shafts in seven of the ten vessels broke, due to latent defect, 
and their propellers were lost at sea. The damage sustained was 
$50,000. 

The company sues the Philippine government in the courts of the 
Philippine Islands. If the court find that there is a conflict between 
the old Spanish law which is in force in the Philippine Islands and the 
common law, ydiich is in force in Shanghai, which law shall control? 
What amount is the company entitled to recover? Why? 

2. A owed B $2,000 and C $1,000. C instituted an action against 
A, and while the action was pending A conveyed to B all his goods and 
chattels worth $1,500. A, however, continued in possession of the 
goods and chattels so conveyed, and sheared some sheep and marked 
Ihem with his mark. C received a judgment against A and took the 
goods which had been conveyed to B in execution. B sued to recover 
these goods. Should he recover ? 

3. A, a wool merchant, wrote B, ‘^How much wool have you on 
hand, and what is your price for it?’’ B replied, “I have about 
20,000 pounds, and my price is 20 cents.” A replied, ^‘I will take the 
wool at the price you name.” To this B did not reply, and when called 
upon to deliver refused to do so. What are A’s rights? 

4. Brown, a carriage builder, agreed to build for Smith two car¬ 
riages on a special pattern to be furnished by Smith for $2,000. 
The transaction was all oral. B built the carriages and offered 
delivery of them to Smith. Smith refused to accept delivery. Brown 
sued Smith and the latter pleaded the statute of frauds. Was the 
plea a good one? 

5. A contracted with B to build a terrace of houses for $10,000, to 
be completed on December 1. It was stipulated that time was to be 
the essence of the contract, and that for every day after December 
1 that the house was not completed A should pay B as liquidated 
damages the sum of $500. The house was not completed until 
December 7, on which day B took possession. B refused payment of 
the contract price, and A instituted suit. B pleaded as a counter¬ 
claim $3,000 liquidated damages for the failure of A to complete the 
house until six days after the 1st of December. What should A 
recover ? 


In the United States court for China, at Shanghai. 

Examination on the act creating the United States court for China, and 
Revised Statutes, sections 4-083-4130, December 24, 1906. 

1. State fully the law which shall be enforced by the United States 
court for China. 

2. On what principles of law has it been held than an American may 
be tried and convicted for a felony in an extraterritorial port without 
first having been indicted by a grand jury and without a trial by jury? 

3. Define the jurisdiction of the United States court for China. 

4. Reproduce fully the substance of the provisions of the act creat¬ 
ing the court for China relating to the administration of estates. 


24 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY 


5. Has the American minister to China power to promulgate a 
regulation of the nature of substantive law? Write your opinion 
fully. 

6. What was the main principle laid down by the Supreme Court in 
the ‘^Ross case?'' [It was explained at the examination what the 
Ross case was, and the facts upon which it was based were recited to 
the applicants.] 

United States court for China, Shanghai, China. ^ 

List of actions brought in the several United States consular districts in China between 
January 2, 1907, when the court was opened, and September 4, 1907, the close of the 
third term at Shanghai. 

I.—CIVIL ACTIONS. 


Num¬ 

ber. 

Name. 

Nature. 

Amount of claim. 

1 

M. S. Friede v. Getz Brothers & 

Goods sold and delivered; agency 

27,700 taels. 

2 

Co., a corporation. 

H. T. Nelson v. F. S. Mayer_ 

contract; damages (Shanghai). 
Debt; partnership contract (Shang¬ 
hai). 

Carrier’s contract; damages for flour 

81,200 Mexican. 

3 

Frazar & Co., v. Boston Steam- 

4,932.20 taels. 

4 

boat Co. and Boston Towboat 
Co. 

Hildebrandt & Co. v. Zimmer- 

injured in handling from steamer to 
lighters at Wposung (Shanghai). 
Carrier’s contract; damages for flour 

$1,043.20 Mexican. 

5 

man & Co. 

F. J. Maitland v. G. Collin wood.. 

injured after discharge on wharf 
(Shanghai). 

Debt on partnership contract; Rus- 

$425 Mexican. 

6 

R. Daly v. M. Dalv. 

sian newspaper subsidy during 
Russo-Japanese war (Shanghai). 
Divorce (Shanghai). 


7 

Woo Ah Sung v. C. A. Biddle... 

Debt; on compact leasing premises 

6,000 taels. 

8 

0. C. Radomski i. R. C. Ra- 

for Chinese race gambling (Shang¬ 
hai). 

Divorce or maintenance (Shanghai).. 

9 

do niski. 

Davies and Thomas v. Zimmer- 

Debt; on contract for building resi- 

1,000 tael.s. 

10 

man. 

P. W. Irvine v. C. W. Mead. 

dences as investment (Shanghai). 
Debt; on sale of stock by stock- 

3,093.50 taels. 

11 

R. R. McDermid v. A. F. Me- 

broker (Shanghai). 

Divorce (Shanghai). 

12 

Dermid. 

J. J. Connell v. R. F. Daly. 

Dissolution of partnership contract 

$10,219.02 Mexican. 

13 

E L. Mondon (Limited) v. C. 

of Owl Restaurant. 

Debt; for wines and liquors sold and 

$3,095 Mexicarf. 

14 

A. Biddle. 

E. L. Mondon (Limited) v- B. 

delivered (Shanghai). 

Debt; for wines and liquors sold and 

$1,285.10 Mexican. 

15 

L. O’Connor. 

Laura Brown v. S. R. Price. 

delivered (Shanghai). 

Debt; for money loaned on note se- 

$36,196.89 Mexican. 

f 

16 

Ex Parte China Metal and Com- 

cured by mortgage of Alhambra en¬ 
tertainment resort (Shanghai). 
Bankruptcy (Shanghai). 

17 

mercial Co. 

Shanghai Gas Co. (Limited) v. 

Debt; for goods sold and delivered 

$974. 79 Mexican. 


A. Biddle. 

and for labor performed (Shanghai) 

• 

18 

Chen Wong Tai v. A. W. George 

Debt; on contract for building a tan- 

12,579 taels. 

19 

& Co. 

W. S. Emens et al. v. The Ameri- 

nery for a third party, labor, and 
materials (Shanghai). 

To quiet title to land (Tientsin). 

20 

can Trading Co. 

Chartered Bank of Australia 

Debt; formonevloaned (Tientsin). 

3,375.77 taels. 

21 

and China v. Ranger Trading 
Co. 

0. Schreyer v. China and Java 

Debt; for services of a physician to 

1,800 taels. 

22 

Export Co. 

Re assignment of J. H. Ranger. 

deceased agent of defendant (Tien¬ 
tsin). 

Discharge of assignees and annul- 

2,000 taels. 

23 

S. H. Comstock v. F. Water- 

ment of assignment (Tientsin). 
Carrier’s contract; flour injured in 

$1,741.07 Mexican. 

24 

house & Co., a corporation. 

■ S. 11. Comstock V. The Boston 

in discharging at Taku (Tientsin). 
Carrier’s contract; flour injured in 

$1,741.07 Mexican. 

25 

Steamship Co. 

G. Racine, et al., doing business 

discharging at Taku (Tientsin). 
Carrier’s contract; flour injured in 

$1,181.40 Mexican. 

26 

as Racine, Ackermann & Co. 
V. The Boston Steamship Co. 
and the Boston Towboat Co., 
corporations. 

W. Kleeschulte v. Ranger Trad- 

discharging at Taku (Tientsin). 

Debt on arbitrator’s award (Tien- 

$9,526.24 Mexican. 


ing Co. 

tsin). 


















CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 25 


List of actions brought in the several United States consular districts in China between 
January 2, 1907 and September 4, 1907, etc. —Continued. 


I.—CIVIL ACTIONS—Continued. 


Num¬ 

ber. 

Name. 

Nature. 

Amount of claim. 

27 

Gi Racine et al., doing business 
as Racine, Ackermann & Co., 
V. F. Waterhouse & Co., a cor¬ 
poration. 

Carrier’s contract; flour injured in 
discharging at Taku (Tientsin). 

$1J81.40 Mexican. 

28 

Toeg & Read v. T. Suffer!. 

Debt on specialty (Shanghai) 

4 94^ tfl<©ls 

$9,197.85 Mexican; $390 

29 

Re appointment of J. M. Dar- 

Approval of accounts'"as United 

30 

rah as deputy marshal. 
United States court for China 

States marshal,^ Feb. 1 to Apr. 19, 
1907 (Shanghai). 

golcf. 

J. H. Brown and L. Brown v. 
S. R. Price. 

Debt for money loaned on note se¬ 
cured by mortgage of Alhambra en¬ 
tertainment resort (Shanghai). 

$12,500 Mexican. 

31 

E. Bavier & Co. v. Irvine, Ed- 
bald & Co. 

Debt on promissory note (Shanghai). 

5,255.55 taels. 

32 

Ex parte M. H. O’Brien, mar¬ 
shal and special disbursing 
officer. 

Approval of accounts as disbursing 
officer. May 17 to Nov. 5, 1907, 
(Shanghai). 

$2,489.64 Mexican. 

33 

A. W. Cunningham, adminis¬ 
trator, V. Jas. L. Rodgers, 
consul-general. 

Damages; misfeasance in adminis¬ 
tration of estate (Shanghai). 

$58,165.85 gold. ' ' 

34 

Chu Kun Kee v. A. W. George 
& Co. 

Debt on contract for building a tan¬ 
nery for third party, labor and ma¬ 
terials (Shanghai). 

1,601.30 taels. 

35 

Re application of J. H. Brown 
for mandamus to W. P. Boyd, 
vice-consul-general in charge. 

To require recognition of petitioner 
as United States citizen (Shanghai). 


36 

Woo Ah Sung et al v. C. A. Bid- 

To annul assignment and enforce 

6,000 taels, or 600 taels 


die and H. I. Heimage. 

payment on judgment debt (Shang¬ 
hai). 

per month for 10 
months. 

37 

Wong Sun Tien v. J. Green. 

Debt; money loaned (Shanghai)__ 

$3,055.91 Mexican. 

38 

0. L. Zilz V. P. W. Irvine et al.. 

Debt on specialty, and dissolution of 
attachment; interlocutory (Shang- 

haib 

$2,000 Mexican. 

39 

F. M. Brooks v. P. W. Irvine . 
et al. 

Debt on specialty, and dissolution of 
attachment; interlocutory (Shang¬ 
hai). 

$3,025 Mexican. 

40 

Re C. A. Biddle, bankrupt. 

Bankruptcy (Shanghai). 

Liabilities, $35,419.67 
Mexican; assets, 

$12,571.41 Mexican. 

41 

Lu Zing Dong v. A. W. Danforth . 

Debt; money loaned by compradore 
(Shanghai). 

12,719.71 taels. 

42 

C. A. and B. Fromm v. T. L. 
Cobbs. 

Damages for personal injuries; auto¬ 
mobile running down rickshaw in 
which wife was passenger (Shanghai). 

$5,000 Mexican. 

43 

Shanghai Land Investment Co. 
(Limited) v. H. A. McConnel. 

Debt: rent for office (Shanghai). 

1,020 taels. 

44 

Re Lorrin Andrews, investiga¬ 
tion of professional conduct. 

Disbarment proceedings for filing 
false affidavit on appeal of United 
States V. Price (Shanghai). 



II.—CRIMINAL ACTIONS. 


No. 

Name. 

Charge. 

1 

* R. G. McCord. 

Obtaining money on false pretenses 



(Shanghai). 

2 

W. Nelson. 

Assault with dangerous weapon 



(Shanghai). 

3 

S. R. Price. 

Assault with dangerous weapon 



(Shanghai). 

4 

Victorino Torres. 

Rape (Shanghai). 

5 

A. Sangaland and A. Martinez.. 

Larceny (Shanghai). 

6 

C. A. Biddle. 

Obtaining money on false pretenses 



(Shanghai). 

7 

J. Alice Duncan. 

Keeping bawdyhouse (Shanghai).... 

8 

Dorothy Grant . 

.do. 

9 

Minnie TTingsley . 

.do. 

10 

Emily Moore . 

.do. 

11 ! 

Ma.xine T.ivingstone, . 

.do. 

12 

Mona, Monteith . 

.do.;. 

13 ' 

Za./.a, Va.n Ruren .. 

.do. 

14 

A liee Sherwood . 

.do.. 

15 

Ma.rgaret TCenda.l! . 

.do. 

16 1 

F. S. Mayer. 

Cheating (Shanghai). 


Sentence. 


Two years’ imprison- 

' ment. 

Three years’ imprison-, 
ment. 

Six months’ imprison¬ 
ment. 

Three years’ imprison¬ 
ment. 

Four months’ im¬ 
prisonment. 

Twelve months’ im¬ 
prisonment. 

Fine $1,000 Mexican 
and costs. 

Do. 

Do. 

Do. 

Do. 

Discharged. 

Fine $1,000 Mexican 
and costs. 

Do. 

Not apprehended. 

Do. 
























































26 CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


List of actions brought in the several United States consular districts in China between 
January 2, 19§7, and September 4, 1907, etc. —Continued. 

II.—CRIMINAL ACTIONS—Continued. 


Num¬ 

ber. 


Name. 


Nature. 


Amount of claim. 


17 

18 

19 

20 
21 


22 


B. F. Colvin. 

G. D. Kenny 
B. F. Colvin. 


Obtaining money on false pretenses 
(Shanghai). 

_do. 

Prison breach (Shanghai). 


T. C. Arlington.. 

Re George F. Curtis and H. A. 
C. Emery, respondents. 


Obtaining money on false pretenses 
(Shanghai). 

Contempt of court (Shanghai). 


O. Bishop and J. C. Gould 


Cheating (Shanghai) 


Six months’ imprison¬ 
ment and costs. 

Not apprehended. 

Ninety days’ impris¬ 
onment. 

Not apprehended. 

H. A. C. Emery, fine 
$20 gold, or five days’ 
imprisonment; G.F. 
Curtis, fine $40 gold, 
or ten days’ impris¬ 
onment. 

Two years’ imprison¬ 
ment each. 


III.—ESTATE ACTIONS. 


Num¬ 

ber. 

Name. 

Will or intestate. 

Value in 
gold. 

1 

F. Vivanti (Shanghai). 

Will. 

$7,560.00 
4,932.00 
30,750.00 
166,500. 00 
3,700.00 
306.00 

2 

Cossette Denvers, alia^s T>a,i]ra Tyeslig (Shangha.i") _ 

Intestate. 

3 

Amelia Ortwin (Shanghai).... 

Will. 

4 

H. B. Endicott (Shanghai). 

__do... 

5 

J. J. Bollard (Shanghai).... 

.do. 

6 

A. H. White (Shanghai). 

.do. 

7 

Marietta Melvin (Shanghai). 

.do. 

1,108.00 
1,000.00 

8 

Anne Gillison (Shanghai)... 

.do.. 

9 

Mary Gale (Shanghai).. 

.do. 

554.00 

10 

J. P. Roberts (Slianghai). 

.do. 

12,975. 00 
a 50.00 

11 

G. A. Riddle (Shanghai) .. 

Intestate. 

12 

Marion F. Greenwood (Shanghai). 

.do. 

o 50.00 

13’ 

D. Conklin (Shanghai)..7..... 

Will. 

6,432.00 
11,332.57 

14 

W. E. Dunn ("Shanghai). 

.do. 

15 

D. A. Emery (Nanking). 

.do. 

7 ; 200.00 

11,188.72 

16 

Mary C. Robinson (Nanking). 

.do. 

17 

J. R. Peale (Canton)_'...T!. 

.do. 

221.00 
a 50.00 

18 

N. Fairchild (Mukden). 

Intestate. 

19 

Dorothy R. Gibson (Hankow). 


0 50.00 
5,315.00 
500.00 
0 50.00 
148.35 

20 

H. Rechnitzer (Tientsin).. 

.do. 

21 

J. L. Whiting (Tientsin). 

Will. .‘ . 

22 

S. K. Palmer (Tientsin). 

Intestate. 

23 

P. Jackson (Foochow).. 

.do... 

24 

Susie B. McCalla (Hankow). 

.do. 

0 50.00 
a 50.00 
932.40 
3,985.21 
4,500.00 
7,000.00 
a 50.00 
a 50.00 
a 50.00 
a 50.00 
a 50.00 
a 50.00 
6,675.00 
1,629.00 
a 50.00 
2,000.00 
5,000.00 
2,250.00 
2,695.00 
a 50.00 
1,000.00 
3,000.00 
15,000.00 
14, 400.00 
60,000.00 
800.00 
. (^) 

^ 1,140.30 
2, 750.00 
4, 746.00 
775.00 

25 

Sarah A. Coath (Shanghai). 

.do. 

26 

J. W. Graeme (Shanghai). 

.do... 

27 

M. M. Mackenzie (Tientsin). 

Wi II. 

28 

Alice L. V. Hobbs (Shanghai). 

Intestate. 

30 

W. N. Pethick (Tientsin) .. 

Will. 

31 

E. M. G. Thor (Hankow). 

Intestate. 

32 

Hannah Renning (Hankow). 

.do. 

33 

Martha F. Jensen (Hankow). 

.do.. 

34 

Elizabeth W. Eyestone (Hankow). 

.do... 

35 

M. Hildebrand (Harbin)...'. 


36 

L. L. Etzel (Tientsin) .1.. 


37 

W. G. Furber (Shanghai). 

Will. 

38 

Rose F. Biddle (Shanghai). 


39 

A. Ekstrom (Hankow)...... 

Intestfl.te _ 

40 

T. B. Owen (Foochow). 

Will. 

41 

Y. J. Allen (Shanghai). 


42 

Ada E. Crandall (“Shanghai). 


43 

Thelma Newton (Shanghai). 

Intestate. 

44 

Mrs. J. R. Peale (Canton)... 


45 

J R. Jones (Nanking)... 


46 

L. Bainbridge (Chefoo). 

Will. 

47 

A. C. Jones (Nanking). 


48 

Mrs. Della E. Jones (Nanking). 

Intestate. 

49 

C. B. Sherman (Tientsin)...... 

Will. 

50 

A. S. Mann (Shanghai).!. 


51 

Louis H. Smith (Chefoo). 


52 

R. E. Worley (Swatow). 

Intestate. 

53 

A. E. Jessup (Tientsin.. 


54 

W. S. Paris (Chefoo). 

Will .. 

55 

W. B. Seabury (Hankow). 

Intestate . 





a Under. 


b Unreported by Consul-General at Chefoo. 










































































































































CHARGES AGAINST JUDGE liEBBEUS R. WILFLEY. 


•27 


[Exhibit 4.] 

REGULATION. 

Whereas defects and deficiencies exist in the laws to be enforced by 
the judicial authorities of the United States in China as regards em¬ 
bezzlement and vagrancy. 

Now, therefore, by virtue of the power vested in me by section 
4086 of the Revised Statutes of the United States, I, William Wood- 
ville Rockhill, envoy extraordinary and minister plenipotentiary of 
the United States of America at Peking, China, do hereby decree: 

1. If any agent, attorney, clerk, or servant of a private person or 
copartnership, or any officer, attorney, agent, clerk, or servant of 
any association or incorporated company, shall wrongfully convert to 
his own use or fraudulently take, make away with, or secrete, with 
intent to convert to his own use, anything of value which shall corne 
into his possession or under his care by virtue of his employment or 
office, whether the thing so converted be the property of his master 
or employer or that of any other person, copartnership, association, 
or corporation, he shall be deemed guilty of embezzlement, and shall 
be punished by a fine not exceeding $1,000, or by imprisonment for 
not more than ten years, or both. 

2. All persons having no visible means of honest and reputable 
support, or who lead an idle and dissolute life, and all persons living 
by stealing or by trading in, bartering for, or buying stolen property, 
shall be deemed and considered vagrants, and upon conviction 
thereof shall be punished by a fine not exceeding $100 or by imprison¬ 
ment for not exceeding sixty days, or both. 

(Signed) W. W. Rockhill, 

American Legation, Peking, China, April, 3, 1907. 

In the United States court ^or China at Shanghai, March, 1907. 

United States of America v. C. A. Biddle. 

Ruling on the Demurrer to the Information; 

SYLLABUS. 

Demurrer to information charging obtaining money under false pretenses within 30 
George II (1757) (cap. 24, sec. 1), supplying defects of the common law relating to 
cheats, said demurrer being based on a contention that said statute is not a portion 
of the common law to be enforced in the jurisdiction of the United States in China, 
is overruled. 

The term ‘common law,” as used in the act of Congress of June 30, 1906 (34 Stat., 
814 ), creating a United States court for China*, is interpreted to mean those principles 
of the common law of England and those statutes passed in aid thereof, including 
the law administered in the equity, admiralty, and ecclesiastical tribunals, which 
were adapted to the situation "and circumstances of the American colonies at the 
date of the transfer of sovereignty, as modified, applied, and developed generally 
by the decisions of the State courts and by the decisions of the United States courts, 
and incorporated generally into the statutes and constitutions of the State.«. 


OPINION. 

The information in this case charges C. A. Biddle with the crime 
of obtaining money under false pretenses. A demurrer to the infor- 


28 . CHAKGES AGAINST JUDGE LEBBEUS E. WILFLEY. 

mation has been filed on the ground that the facts alleged in the 
information do not constitute an offense. The demurrer is based upon 
the contention that obtaining money under false pretenses is a statu¬ 
tory and not a common-law offense, and since there is no United States 
statute on the subject it is not a crime to obtain money under false 
pretenses in China. 

The law defining and providing for the punishment of the crime of 
obtaining money under false pretenses is found in 30 George II (1757) 
(cap. 24, sec. 1), which was enacted to supply the defects of the com¬ 
mon law relating to cheats. The American statutes on obtaining 
money under false pretenses follow in substance the English statute. 
(Bishop, New Criminal Law, vol. 2, pp. 236-237.) 

The question raised by the demurrer to the information is as follows: 
Is the above-mentioned provision of the English law included in the 
common law,” as the term is used in section 4 of the act of June 30, 
1906, establishing this court? This calls for an interpretation of the 
term as used in the.statute. ^ 

Chief Justice Marshall, in a ruling made during the trial of Aaron 
Burr, held that the term “common law” referred to “those general 
principles and those general usages which are to be found, not in the 
legislative acts of any particular State, but in that generally recog¬ 
nized and long-established law which forms the substratum of the 
laws of every State.” (Hinckley, American Consular Jurisdiction in 
the Orient, pp. 51-53.) 

This is an accurate general definition of the term “ common law ” as 
it existed in the United States at the time the eminent jurist gave this 
opinion, but in order to meet the practical demands of the situation 
which now confronts the newly established United States court for 
China it is necessary to descend more into detail and to define the 
meaning of the term with greater particularity. 

When our ancestors came to the New World, they claimed the com¬ 
mon law of England as their birthright and brought it with them, 
except such parts as were judged inapplicable to their new conditions. 
The common law of England is the unwritten law as distinguished 
from the written or statute law, and, in its ordinary acceptation, it 
includes those general customs which pervade the whole realm and 
particular laws which have been by degrees added thereto. 

The common law as introduced into the United States embraces 
those general principles of the common law of England and those 
English statutes passed in aid thereof which were applicable to the 
new conditions and circumstances existing in the American colonies 
at the date of the change of sovereignty. (Mr. Justice Story, 
Petterson v. Winn, 5 Peters, 242; see also Commonwealth v. Knowl- 
ton, 2 Mass., 530.) 

This is also the view taken by Professor Bishop in his recent work 
on Criminal Law, wherein he says: “The common law of England, 
as modified by statutes and including the law as administered in 
the equity, admiralty, and ecclesiastical tribunals, traveled with 
the original colonists to this country; and here so much of it as was 
adapted to their altered situation and circumstances, yet no more, 
became and thenceforward constituted our American common law. 
But when it was thus adopted by us we were not a nation. Not 
even the Kevolution, but the Constitution of the United States, 
gave us nationality. The Revolution and the Constitution did not 


CHAKGES AGAINST JUDGE LEBBEUS R. WILELEY. 


29 


annihilate any law with which they were not in conflict. The laws 
existing when each transpired remained such in their several localities, 
and so they would have done if the colonies and the States had been 
politically annihilated. * * * result is that the nation has 

no common law within the territorial limits of the States, and all 
unwritten law within them is State law. Yet in reason it is obviqus 
that there are circumstances under which, not a national common 
law, but the somewhat varying local laws of each of the several 
States, constitute an unwritten rule for the tribunals of the Unitecl 
States.’' (Bishop, New Criminal Law, vol. 1, p. 104; see also Minor, 
Institutes, ed. 1891, vol. 1, p. 34.) 

In America the United States courts when called upon to interpret 
and apply the common law are not confronted with the difficulty 
which now confronts this court, because there a United States court 
has only to administer the common law of the State or States in which 
the matter pending before the court originated. The common law 
of each State is usually well defined. Here we have the situation of 
a United States court sitting outside the territorial limits of the States 
and outside the territorial limits of the nation itself which is called 
upon to interpret and apply the common law. 

It is readily seen that this gives rise to difficulties which do not 
exist in the United States courts sitting in America. The difficulty 
was recognized by the Hon. Caleb Cushing, who, as commissioner, 
negotiated the treaty of July 3, 1844, and who subsequently, as 
Attorney-General of the United States, delivered an opinion upon 
the meaning of the term common law ” as used in the act of Congress 
of August 11, 1844, which was passed pursuant to said treaty. The 
term ‘^common law” is used in the statute of August 11, 1848, in the 
same sense in which it is used in the statute of June 30, 1906. 

In the above-mentioned opinion Mr. Cushing discusses the subject 
as follows: ‘‘^The common law.’ In this respect, the statute fur¬ 
nishes a code of laws for the great mass of civil or municipal duties, 
rights, and relations of men, such as, within the United States, are 
of the resort of the courts of several States. Some general code in 
these respects became necessary, because the law of the United States 
—that is, the Federal legislation—does not include these matters and 
of itself would be of no avail toward determining any of the questions 
of property, succession, and contract, which constitute the staple 
matter of ordinary life. For such of the States as were founded in 
whole or chief part by colonists from Great Britain and Ireland, or 
their descendants, the law of England, as it existed in each of those 
States at the time of their separation from Great Britain, with such 
modifications as that law had undergone by the operation of colonial 
adjudication, legislation, or usage, became the common law of such 
independent State, Meantime, in addition to many changes, differing 
among themselves, which the common law underwent in each of the 
colonies before it became a State, that common law has been yet 
more largely changed by the legislation and judicial constitution of 
each of the States. Hence, it was not enough to enact that the com¬ 
mon law should intervene to supply in China deficiencies in the law 
of the United States. For the question would be sure to arise. What 
common law? The common law of England at the tiffie when the 
British colonies were transmuted into independent republican States ? 
Or the common law of Massachusetts, or that of New York, or Penn- 


30 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


sylvania, or Virginia? For all these are distinct, and in many import¬ 
ant respects diverse, 'common law.’ ” (Opinions of Attorneys-Gen- 
eral of the United States, vol. 7, p. 503-504.) 

The foregoing brilliant discussion of the subject by Mr. Cushing at 
once indicates the difficulties of and the necessity for a definite and 
comprehensive interpretation of the term as used in the law. For the 
reasons pointed out in the foregoing discussions it is well-nigh impos¬ 
sible to include in a single statement a definition of the common law 
which will be comprehensive enough to cover the entire field. 

It is believed, however, that the authorities warrant the following 
holding: The term "common law” as used in the statute is inter¬ 
preted to mean those principles of the common law of England and 
those statutes passed m aid thereof, including the law administered 
in the equity, admiralty, and ecclesiastical tribunals, which were 
adapted to the situation and circumstances of the American colonies 
at the date of the transfer of sovereignty, as modified, applied, and 
developed generally by the decisions of the State courts and by the 
decisions of the United States courts, and incorporated generally into 
the statutes and constitutions of the States. 

I hold, therefore, that the above-mentioned English statute is a 
part of the common law within the meaning of the term as used in the 
United States statute establishing this court. Hence the demurrer is 
overruled. * 

(Signed) L. R.’ Wilfley, 

Judge of the United States Court for 'China. 

Shanghai, March 6, 1907. 

United States court for China, term at Shanghai, August, 1907. 

In the matter of the probate of the will of Young John Allen. 

Judgment. 

SYLLABUS. 

Domicile under American law is that place which a person has freely chosen for his 
abode and from which he has no present intention of removing. 

Extraterritoriality is that act by which a state, usually by virtue of a treaty, extends 
its jurisdiction beyond its own boundaries into the territory of another state and 
exercises the same over its nationals who, for the time being, may be sojourning 
within the territory of the other state. 

There is nothing in the theory or practical operation of the law of extraterritoriality 
repugnant to or irreconcilable with the application of the American law of domicile 
by American courts to American citizens residing jn a country with which the 
United States has treaties of extraterritoriality. 

Dr. Young J. Allen, having resided in Shanghai for a period of forty-seven years 
prior to his death, 'and having expressed the intention of making Shanghai his 
permanen thome, thereby acquired an extraterritorial domicile in China. The 
court in administering his estate will be guided by the common law which is in 
: force in China, the place of his domicile at the date of his death, and not by the 
statutes of Georgia, the place of his domicile of origin. 

OPINION. 

I. In view of the well-established principle of law that the personal 
property of a deceased person must be administered according to 
the law of his domicile, it becomes necessary at the outset to deter¬ 
mine where the testator in the will here presented for probate was 
domiciled at the date of his death. 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 31 

The facts in this case are as follows: Dr. Young J. Allen was born 
in the year 1836 in the State of Georgia. In 1860 he moved to 
China, where he lived continuously for a period of forty-seven years. 
He died in Shanghai on May 30, 1907. China was the chosen field 
of his activities, and the instruction of its people in the principles 
of Christian civilization was his life work. Here his family was 
reared and now lives. Here his estate, consisting solely of personal 
property, was accumulated, and it was his oft-expressed intention 
to make China his permanent home. The will which his legal repre¬ 
sentatives now present for probate is wholly in his own handwriting 
and was duly attested by two witnesses. Neither of these wit¬ 
nesses, however, is within the jurisdiction of the court. This being 
the case, the instrument before the court must be regarded as. a 
holographic will, which, under the common law now in force in 
China, is valid, but the court is not informed that such a will is 
recognized by the law of Georgia. 

These facts present for consideration one of the most complex 
and important subjects connected with the operation of the law of 
extraterritoriality. Succinctly stated, the legal question here involved 
is: Can an American citizen acquire what may be termed an extra¬ 
territorial domicile in China? Can he have a domicile out of the 
United States in which he is nevertheless governed by the laws of 
the United States, or must he retain that of the State where he was 
domiciled before settling in China? In investigating this subject it 
will be necessary to have a clear conception, first, of the American 
law of domicile, and second, of the true meaning of extraterritoriality. 

II. That a person must always have a domicile somewhere, that 
no person may have more than one domicile at a time, that every 
natural person free and sui juris may change his domicile at pleasure, 
and that civil status, with its attendant rights and disabilities, 
depends, not upon nationality, but upon domicile, are propositions 
upon which the authorities are universally agreed. While domicile 
has been defined by law writers in a variety of ways, yet there are 
two elements which are found in all definitions, namely, residence 
and animus manendi, or intention of continued residence. In recent 
years, however, there has been a tendency on the part of the courts 
to modify this /lefinition by substituting for the animus manendi, 
or intention of residing permanently in a certain place, the absence 
of the animus revertendi, or the intention of returning to the place 
of former residence. 

Vattel defines domicile as ^^an habitation fixed in some place with 
the intention of remaining there always.’^ Savigny says, ^‘That 
place is to be regarded as a man’s domicile which he has freely chosen 
as his permanent abode (and thus for the center at once of his legal 
relations and his business).” According to Judge Story, ^^That place 
is properly the domicile of a person in which his habitation is fixed 
without any present intention of removing therefrom.” Phillimore 
defines it as Residence at a particular place accompanied with 
(positive or presumptive proof of) an intention to remain there for 
an unlimited time.” The definition of Vice-Chancellor Kindersley, 
while lacking in precision, is perhaps more comprehensive than any 
of the foregoing. It is as follows: 

That place is properly the domicile of a person in which he has voluntarily fixed 
.the habitation of himself and his family, not for a mere special and temporary pur- 


32 CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

pose, but with a present intention of making it his permanent home, unless and until 
something (which is unexpected or uncertain) shall occur to induce him to adopt 
some other permanent home. (Dicey, Conflict of Laws, American Notes by Moore, 
p. 728.) 

Mr. Webster, while Secretary of State, had occasion to consider 
the law of domicile, and expressed his views on the subject as follows: 

The general rule of the public law is that every person of full age has a right to 
change his domicile; and it follows that when he removes to another place, with an 
intention to make that place his permanent residence or his residence for an indeflnite 
period, it becomes instantly his place of domicile, and this is so notwithstanding 
he may entertain a floating intention of returning to his original residence or citi¬ 
zenship at some future period. * * * In questions on this subject the chief 
point to be considered is the animus manendi, or intention of continued residence; 
and this must be decided by reasonable rules and the general principles of evidence. 
If it sufficiently appear that the intention of removing was to make a permanent 
settlement, or a settlement for an indefinite time, the right of domicile is acquired 
by a residence even of a few days.” (Thrasher’s case, Moore, International Law 
Digest, vol. 3, p. 818.) 

The feature here prominently brought out, that domicile will not 
be defeated by a mere “floating intention’’ to remove from the 
locality at some future date, has been adopted by American courts 
in recent vears. (Gilman v. Gilman, 52 Maine, 165; 83 Am. Dec., 
502.) 

In view of the foregoing we feel warranted in stating that under 
American law a person’s domicile is that place which he has freely 
chosen for his abode and from which he has no present intention of 
removing. 

III. It now becomes necessary to ascertain if there be any reaso 
why the foregoing principles may not be applied to American citizens 
residing in a country with which the United States has a treaty of 
extraterritoriality. This leads to an investigation of the real mean¬ 
ing of extraterritoriality. It is well nigh impossible to give an exact 
definition of the term, yet its practical application is not difficult 
of comprehension. Broadly speaking, extraterritoriality is a term 
used to describe the act by which a state extends its jurisdiction 
beyond its own boundaries into the territory of another state, and exer¬ 
cises the same over its nationals who, for the time being, may be 
sojourning in the territory of the other state. It is usually based 
upon treaty, but the rights and privileges arising therefrom are fre¬ 
quently amplified by usage and sufferance. Extraterritoriality is put 
in operation mainly by western states in oriental countries where it 
signifies principally the exemption of the^ nationals of said western 
states from local jurisdiction and a corresponding exercise of juris¬ 
diction over them by their own national authorities. 

For the purpose of ascertaining the practical operation of the law 
of extraterritoriality, we shall now trace in brief outline the history 
of its application in China by two prominent western nations, the 
United States and Great Britain, under their treaties of extraterri¬ 
toriality with that country. It will be observed that the treaties 
under which these two nations operate in China are substantially the 
same. Great Britain, however, has exercised its rights and privi¬ 
leges under the treaties and developed its law of extraterritoriality 
in C’hina to a far greater extent than has the Government of the 
United States. 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


33 


The first treaty of extraterritoriality between the United States 
and China was entered into on July 3, 1844, and a second treaty was 
concluded on June 18, 1858. Articles XXV and XXVII, respec¬ 
tively, of said treaties provide: 

All questions in regard to rights, whether of property or of person, arising between 
citizens of the United States in China shall be subject to the jurisdiction and regu¬ 
lated by the authorities of their own Government. 

Congress in 1848 and in 1860 enacted statutes for the purpose of 
carrying into full force and effect the provisions of these treaties, and to 
that end extended certain laws to China and created consular courts, 
vesting them with authority to apply and execute said laws. The body 
of laws which Congress has extended to Americans in China consists of 
those statutes of the United States suitable to carry the treaties into 
effect, the common law, including the law of equity and admiralty, and 
certain regulations of the American minister to China promulgated 
to supply the deficiencies in these laws. (U. S. Revised Statutes, 
sec. 4086.) 

On June 30, 1906, Congress passed the act creating this court and 
vested it substantially with the jurisdiction formerly exercised by 
the consular courts. (For a complete statement of the histor}^ of the 
American law of extraterritoriality in China, see Hinckley, American 
Consular Jurisdiction in the Orient.) 

Great Britain, on the other hand, by successive foreign jurisdiction 
acts from 1843 to 1890, by numerous orders in council, by regula¬ 
tions promulgated by the British minister at Peking, and by the deci¬ 
sions of the British supreme court at Shanghai has amply provided 
for the protection and government of its subjects in China and has 
probably carried *the law of extraterritoriality in China to a higher 
degree of development than any other foreign power. The extent 
to which Great Britain has exercised its power under the treaties 
will appear from an examination of what is known as the foreign 
jurisdiction act of 1890, and an examination of the jurisdiction pos¬ 
sessed by the British supreme court at Shanghai. Section 1 of the 
foreign jurisdiction act provides: 

It is and shall be lawful for Her Majesty the Queen to hold, exercise, and enjoy any 
jurisdiction which Her Majesty now has or may at any time hereafter have within a 
foreign country in the same and as ample a manner as if Her Majesty had acquired 
that jurisdiction by the cession or conquest of territory. • . 

Section 3 of the act provides: 

Any act or thing done in pursuance of any jurisdiction of Her Majesty in a foreign 
country shall be as valid as if it had been done according to the local law then in force in 
that country. 

And paragraph 2 of section 5 provides: 

Thereupon those enactments (described in the first schedule of this act) shall, to 
the extent of that jurisdiction, operate as if that country were a British possession 
and as if Her Majesty in council were the legislature of that possession. (53 and 54 
Victoria, chap. 37.) 

The British supreme court in Shanghai, which was established in 
1866, is vested with jurisdiction to execute the laws which Great 
Britain has extended to its subjects in China. This court is in fact 
a British court, and in addition to ordinary civil jurisdiction exer¬ 
cises jurisdiction in cases involving admiralty, bankruptcy, and 
lunacy, and in addition to the ordinary criminal jurisdiction it exer- 

29865—08-3 


34 


CHAEGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


cises jurisdiction in some special statutory offenses, such as offenses 
against the pate'nts and trade-marks acts. (Piggott, Exterritoriality, 
p. 40.) To such an extent has the British jurisdiction in China been 
developed that there is almost no legislative or judicial phase of the 
law in force in England which if necessary in China has not its coun¬ 
terpart here. On the other hand, common law” and equity” 
form the vague and indefinite description of the main law in force in 
respect to Americans in China. 

From the foregoing it will be seen that while the Emperor of China 
exercises nominal sovereignty over all Chinese territory, including 
that occupied by the nationals of the United States and Great Britain, 
yet the jurisdiction of these two countries over their own citizens 
who reside in China is for all practical purposes as full and complete 
as if China were in fact territory belonging to these nations. 

IV. We come now to the consideration of the main question in this 
case, namely, whether there be anything in the practical operation of 
the law of extraterritoriality fatal to the application of the principals 
of the American law of domicile to Americans residing in China. So 
far as we are able to ascertain, this question has not been passed 
upon by the courts of the United States nor has it been made the 
subject of discussion by the executive branch of the Government. 
It has, however, received the careful consideration of the courts of 
last resort of Great Britain with the unlooked-for result that there 
is now no such thing known to the British law of extraterritoriality as 
an Anglo-Chinese domicile. 

The leading case on this subject originated in Shanghai, and is 
known as “TootaFs trusts.” The facts in this case were as follows: 
After some previous changes of residence, Tootal, a subject of Great 
Britain, in 1862 came to reside in Shanghai, and with the exception 
of some short visits to England for health and business he continued 
to reside at Shanghai until 1878, the date of his death. It was 
admitted that some years before his death he had determined to 
reside permanently at Shanghai, had relinquished all intentions of 
ever returning to England, and had expressed this intention on a 
number of occasions. In his will he described himself as a resident 
of Shanghai, in the Empire of China. The decision of the court was 
written by Mr. Justice Chi tty, who held that British subjects in 
eastern countries in all cases retain their domicile in that portion of 
the British Empire in which they were domiciled previously to 
taking up their abode in an eastern state. The decision is based on 
the proposition that residence in a “territory” is an essential part 
of the legal idea of domicile and holds that “there is no authority 
that an individual can become domiciled as a member of a community 
which is not a community possessing the supreme or sovereign terri¬ 
torial power.” (Re TootaFs trusts, L. R. 23 C. D., p. 532.) 

The doctrine thus laid down was followed by the court in the case 
of Abd-ul-Messih v. Farra (13 App. Cases, 431). The decision in this 
case was written by Lord Watson. “Their lordships,” he says, “are 
satisfied that there is neither principle nor authority for holding that 
there is such a thing as domicile arising from society and not from 
connection with a locality. In re Total’s trusts is an authority 
strictly in point, and their lordships entirely concur in the reasons 
by which Mr. Justice Chitty supported his decision in that case.” 
(See also Maltass v. Maltass, 1 Rob. Ecc., 80, and The Indian Chief, 
3 Rob. Adm., 29.) 


CHARGES AGAINST JUDGE LEBBEUS E. WILELEY. 


35 


While these decisions fix the.law of Great Britain on this subject 
for the present, the doctrine here laid down has not commended itself 
to the judgment of the leading British commentators on the subject 
of extraterritoriality. Sir Francis Piggott, chief justice of Hongkong, 
in a work which has just come from tfie press, expresses the opinion 
“that when the question is again raised it will be found that the 
principles established by the most recent cases necessitate a recon¬ 
sideration of the law laid down on the subject by Mr. Justice Chitty.’’ 
The learned justice then enters upon an exhaustive examination of 
the principle upon which the foregoing decisions are based, and dis¬ 
cusses the same in the following manner: 

At the time when many of the definitions were framed the law applicable to ex¬ 
territoriality was little known and in some cases was not present in the mind of the 
judges who framed them. Locality and territory were obviously the terms which 
would be used, the community among which a person settled being as obviously 
identified with the locality. But it attached undue importance to the word to insist 
that because “locality” is used in the definitions in cases where there could be no 
questions as to its fitness, therefore it excluded the idea of “relationship to a com¬ 
munity” in the first case that came up for argument, in which the point was whether 
“relationship to a community” is or is not involved in domicile. * * * The com¬ 
munity referred to is of course the community which inhabits a country or a definite 
locality—in other words, a community which has laws and customs of its own which the 
government of the locality imposes on all members of it—but the question is whether 
the reason of the rule, the whole principle on which it is based, do not render it as 
applicable to an exterritorial community as to a territorial one. On the hypothesis 
the circumstances may be the same in the one as in the Other. A man may set up his 
home in a treaty port, he may have banished forever the idea of returning to his native 
country; the animus manendi may be clear, without shadow of doubt, on the hypothe¬ 
sis, too, there is a body of law regulating the community. Why is it impossible, then, 
for the ordinary principles of the law to be applied and for the personal relations of the 
permanent members of the community to come under that law permanently as the law 
of the domicile of their choice; of those who are born members of the community as the 
law of the domicile of their origin? * '* * Linking these two propositions together, 
it is suggested that the inevitable result is a modification of Lord Watson’s interpreta¬ 
tion of the law of domicile referred to above on the following lines: The law which 
regulates a man’s personal status must be that of the governing power in whose domin¬ 
ions his intention is permanently to reside, or must be so recognized and established by 
that governing power as to be in fact the law of the land. (Piggott, Exterritoriality, 
pp. 228, 230, 232-233.) 

The subject has also been carefully gone into by Hall, the cele¬ 
brated authority on international law, in his work on The Foreign 
Jurisdiction of the British Crown. He also takes issue with the court 
in the Too tabs Trusts case, and expresses his views on the subject as 
follows: 

It is perhaps to be regretted that a change in the law is not made which a short order 
in council could easily effect. Anglo-oriental domicile has its reasonable, it may 
almost be said, its natural place. Conflicts between the differing laws of England, of 
Scotland, of the various self-governing colonies are inevitable within British jurisdic¬ 
tion in the East; but it is unnecessary to multiply the points of collision. So long as 
persons have not identified themselves with the life of a new community they must 
keep each his own law; but as soon as they have shown their wish and intention to cut 
themselves adrift from the association of birth they prove their indifference to the per¬ 
sonal law attendant on their domicile of origin. There is therefore no reason why 
simplicity and unity of law should not be gained for British subjects by attributing 
community in the laws of England to all of European blood. There is also every reason 
for avoiding very grave difficulties of another kind, which are opened through invari¬ 
able preservation of the domicile of origin. English families, even in the present day, 
often remain through more than one generation in oriental countries as their permanent 
place of abode. Formerly the history of persons whose domicile might become a matter 
of importance was generally knovm sufficiently well. Many are now of obscure ante¬ 
cedents and of an origin uncertain among the numerous places from which British 
subjects can derive. As no domicile can be acquired in an Anglo-oriental community, 


36 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


it becomes every year more probable that cases will occur in which the determination 
of the domicile of a father, perhaps of a grandfather, may become necessary, and in 
which it may be equally impracticable to impute an English domicile or to attribute 
any other with fair probability. It would be a great advantage that in such cases there 
should be a fixed rule which should correspond with the obvious facts, and that the 
courts, instead of searching with infinite trouble and expense for an ancestral domicile 
should be enabled to find that a domicile had been acquired in the eastern country 
which carried with it the application of English law; that, in other words, residence in 
China under English law, with the animus manendi, should imply domicile in China 
under the condition of the applicability of the special law of the English community 
established there, as that law is defined by order in council. Theoretically the concep¬ 
tion of such a domicile is unobjectionable if once the mind is cleared of the notion, at 
present dominant, that domicile is the creature of place and intention alone. In 
Europe it is so, because residence in a place implies subjection to the common terri¬ 
torial law, and to no other; in the East it is not necessarily so, because residence there 
implies subjection to the law of one or other of several different communities, the per¬ 
sonal laws of which receive equal recognition from the territorial sovereign power. 
Association with place is necessary to domicile; but it is not always the sole determi¬ 
nant factor. In any case, even if the conception of domicile here suggested be anom¬ 
alous, the convenience of giving effect to it is large enough to excuse a certain sacrifice 
of logical principle. (Hall, Foreign Jurisdiction of the British Crown, pp. I84-I86.) 

After a careful consideration of the principles of law on this subject 
as well as the practical demands of the situation, this court is inclined 
to give greater weight to the foregoing argument of Mr. Hall than to 
the line of reasoning adopted by Mr. Justice Chitty in the TootaFs 
Trusts case. We can see no good reason for holding that a citizen of 
the United States can not be domiciled in China. Mr. Justice Chitty’s 
decision destroys in their application to China all the definitions of 
domicile contained in the books. It ignores both of the essential ele¬ 
ments of residence and intention. The British courts were correct 
when they stated that there was no authority for holding that an 
individual could not become domiciled as a member of a community 
which was not a community possessing the supreme or sovereign ter¬ 
ritorial power. This fact, however, is without significance when it is 
noted that the courts were considering the first case of this character 
which had ever been presented for judicial determination. At the 
time the TootaFs Trusts case came up for consideration the British 
law of extraterritoriality was not so well developed as it is now and 
the subsequent trend of events has given it a different meaning from 
what it had at the time the decision was rendered. It was quite 
natural for the courts thirty years ago to announce that the immis¬ 
cible character of the two races and the radical difference between the 
religions, customs, habits, and laws of peoples of the two countries 
raised a strong presumption against a British subject becoming domi¬ 
ciled in China. At that time it was doubtless the fixed purpose of the 
majority of those who came to China to sojourn here only a tew years 
and then to return to the country from which they came. This is not 
the case at present. Many families dwell here now with the fixed 
purpose of making China their permanent home. There are abundant 
examples of families permanently located here, and this is likely to 
become more common in the future. In view of this fact the number 
of heirs and distributees of foreign citizens decedent in China who live 
in China in proportion to those who dwell in the countries from which 
said foreigners came is rapidly growing larger, thus necessitating the 
adoption of a rule which will meet the practical demands of the situa¬ 
tion. 

From the standpoint of expediency Hall has very clearly pointed out 
that conflicts between the laws of England, Scotland, and various 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


37 


self-governing colonies are inevitable within British jurisdiction in the 
East. This proposition is too clear to require the support of argu¬ 
ment. If this court should adopt the rule laid down by the British 
courts, such conflicts would be perhaps more numerous and more pro¬ 
nounced in the administration of American law in China than in 
administration here of the law of Great Britain. The adoption of such 
a rule would put this court to the necessity in the matter Ox probating 
wills of applying the laws oi forty-six different Commonwealths, to say 
nothing of the laws of our Territories and insular possessions. This 
would be practically impossible. Furthermore, the adoption of the 
British rule would require this court not only to hold that Doctor 
Allen, who had resided in China for forty-seven years and who had 
expressed his intention of residing here permanently, was domiciled in 
Georgia, but also to hold that his children and grandchildren, some of 
whom have never been in Georgia, and who never expect to reside 
there, are nevertheless domiciled in that State. This proposition is 
too extravagant to be maintained. It requires a greater stretch of 
the imagination and the adoption of a greater fiction of law to hold 
that a person can be domiciled in a country where he does not reside 
and has no intention of residing at any future time than to hold that a 
citizen of a foreign state can acquire an extraterritorial domicile in a 
community which is not the community possessing the sovereign ter¬ 
ritorial power. Every consideration of reason and convenience 
demands that the American law of domicile be applied by American 
courts in China. 

We hold therefore: 

First. That there is nothing in the theory or practical operation of 
the law of extraterritorialty inconsistent with or repugnant to the 
application of the American law of domicile to American citizens 
residing in countries with which the United States has treaties of 
extraterritoriality. 

Second. That Dr. Young J. Allen, having lived in China for a period 
of forty-seven years and having expressed his intention to live here 
permanently, thereby acquired an extraterritorial domicile in China; 
consequently this court in the administration of his estate will be 
guided by the law which Congress has extended to Americans in 
China, which is the common law. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, August 16, 1907. 

In the United States Court for China at Shanghai, May, 1907. 

Re 'prolate of the will of John Pratt Roberts. 

SYLLABUS. 

The United States has acquired by treaty and established by statute and regulation a 
jurisdiction in China intended to be adequate to the needs of American citizens 
resident therein. It is not, however, specifically provided that the courts of the 
United States in China shall exercise probate jurisdiction, and if such jurisdiction 
exists it must be by virtue of general power under the treaties and of definite power 
under the common law extended by act of Congress to citizens of the United States 
and their property in China. 

The common-law courts of England exercised a definite probate jurisdiction previous 
to and concurrently with the ecclesiastical courts, and the common law of England is 
at the basis of the American law of administration. 


38 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


Whereas courts of probate in the United States are created by statute, it is held that by 
extending to the courts in China common-law powers Congress intended to give 
these courts powers necessary to put into effect the treaties and to meet the needs 
of citizens of the United States in China. 

The consular courts of the United States in China were therefore rnade courts of pro¬ 
bate; and the United States court for China, having all of the jurisdiction of the 
consular courts, saving in minor actions, is a court of probate with full powers. 

OPINION. 

Mrs. Kosalie Adelaide Jackson has filed in this court a document 
purporting to be the last will and testament of her father, Capt. John 
Pratt Roberts, an American citizen, who resided in Shanghai at the 
date of his death, and she has asked that the same be admitted to 
probate. 

The petition raises the question whether this court has jurisdiction 
in the matter of the administration of estates of Americans decedent 
in China. In order to determine this question it will be necessary to 
inquire into the probate jurisdiction of the American consular courts 
in China prior to the establishment of this court, because the latter 
has no jurisdiction that was not possessed by the former. 

Section 1 of the act of June 30, 1906, creating this court provides 
that it shall have exclusive jurisdiction in all judicial proceedings 
whereof jurisdiction may now be exercised by the United States con¬ 
suls and ministers by law and by virtue of treaties between the 
United States and China, except in civil cases where the amount 
involved does not exceed $500 gold and in Qriminal cases where the 
punishment does not exceed a fine of $100 or sixty days’ imprison¬ 
ment, or both. In such cases the consuls retain jurisdiction. 

There can be no doubt that China intended by the treaties of extra¬ 
territoriality to concede to the United States complete jurisdiction over 
Americans resident in China, and over their property located in China; 
and it is equally certain that Congress, by enacting the statute of 
June 22, 1860, pursuant to the terms of the treaties and for the purpose 
of carrying the same into full force and effect, meant to extend to 
China a body of laws adequate to the needs of American citizens resi¬ 
dent therein. 

The treaty of 1858 provides in Article XXVII as follows: 

All questions in regard to rights, whether of property or of person, arising between 
citizens of the United States in China shall be subject to the jurisdiction and regu¬ 
lated by the authorities of their own Government. 

A portion of the act of Congress of 1860 embodied in Revised Stat¬ 
utes, section 4085, enacted for the purpose of carrying into full effect 
the provisions of the treaties, provides in respect to ministers and con¬ 
suls that ‘‘such officers are also invested with all the judicial authority 
necessary to execute the provisions of such treaties, respectively, in 
regard to civil rights, whether of property or person.” 

This brings us to a consideration of the question whether Congress 
extended to China a system of laws relating to the administration of 
estates which the above-named officers were to apply. 

The answer to this question is found in the provisions of Revised 
Statutes, section 4086, which reads as follows: 

Sec. 4086. Jurisdiction in both criminal and civil matters shall, in all cases be exer¬ 
cised and enforced in conformity with the laws of the United States, which are hereby, 
so far as is necessary to execute such treaties, respectively, and so far as they are suit¬ 
able to carry the same into effect, extended over all citizens of the United States in 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


39 


those countries, and over all others to the extent that the terms of the treaties, respec¬ 
tively, justify or require. But in all cases where such laws are not adapted to the object, 
or are deficient in the provisions necessary to furnish suitable remedies, the common 
law and the law of equity and admiralty shall be extended in like manner over such 
citizens and others in those countries; and if neither the common law, nor the law of 
equity or admiralty, nor the statutes of the United States furnish appropriate and 
sufficient remedies, the ministers in those countries, respectively, shall by decrees and 
regulations, which shall have the force of law, supply such defects and deficiencies. 

Since neither the general laws of the United States nor the laws 
relating in particular to extraterritorial jurisdiction contain specific 
provisions on the administration of estates, and since the minister 
has issued no regulations on the subject, it follows that the only 
source from which jurisdiction might be drawn was the common law. 

The question now presents itself. Was the law of probate of wills and 
the administration of estates included in the '‘common law” which 
was extended to China by the statute ? 

The term "common law” has been interpreted by this court to 
mean: 

Those principles of the common law of England and those statutes passed in aid 
thereof, including the law administered in the equity, admiralty, and ecclesiastical 
tribunals, which were adapted to the situation and circumstances of the American colo¬ 
nies at the date of transfer of sovereignty, as modified, applied, and developed gener¬ 
ally by the decisions of the State courts and by the decisions of the United States courts, 
and incorporated generally into the statutes and constitutions of the States. (United 
States V. Biddle, Mar. 6, 1907.) 

In order to determine whether the law governing the administration 
of estates was covered by the common law as thus construed it will 
be necessary to review the history of the law on the subject with a 
view to ascertaining, first, whether it was a part of the common law 
of England and the statutes passed in aid thereof, and, if so, second, 
whether it has been introduced into the United States as the basis of 
the American law of probate. On account of the meagerness of the 
library available to the court at the present time our investigation will 
be mainly confined to accounts contained in the commentaries of 
Blackstone and Kent, and Judge Woerner^s work on The American 
Law of Administration. The law governing the administration of 
estates in England is commonly referred to by text writers and judges 
as a part of the ecclesiastical law, which was administered exclusively 
in the ecclesiastical courts. Though there is warrant in the law for 
this conclusion by reason of the fact that ecclesiastical courts exer¬ 
cised almost complete jurisdiction over estates of deceased persons for 
a long period of time in England, yet it will be found upon a close 
examination of the history of the law that the subject was in fact 
covered by the common law, that estates were administered in the 
courts of common law, prior to the establishment of the ecclesiastical 
courts, and that the common law principles and procedure of the com¬ 
mon law courts appeared in the history of the administration ol 
estates through all the centuries, and have exercised a profound 
influence on the American law of administration. 

With us in England [says Blackstone] this power of bequeathing is coeval with the 
rud ments of the law, for we have no traces or memorials of any time when it did not 
exist. * * * But we are not to imagine that this power of bequeathing extended 
originally to all a man’s personal estate. On the contrary, Glanvil will inform us that 
by the common law, as it stood in the reign of Henry the Second, a man’s goods were 
to be divided into three equal parts, of which one went to his heirs or lineal descendants, 
another to his wife, and a third was at his own disposal. * * * The shares of the 
wife and children were called their “reasonable” parts. * * * This continued to 

be .the law of the land at the time of magna charta. * * * In the reign of King 


40 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


Edward the Third this right of the wife and children was still held to be the universal 
or common law. * * * In case a person made no disposition of such of his goods 
as were testable, whether that were only part or the whole of them, he was, and is, said 
to die intestate; and in such cases it is said that by the old law the King was entitled 
to seize upon his goods, as the parens patriae and general trustee of the Kingdom. 
This prerogative the King continued to exercise for some time by his own ministers of 
justice; and probably in the county court, where matters of all kinds were determined; 
and it was granted as a franchise to many lords of manors, and others, who have to this 
day a prescriptive right to grant administration to their intestate tenants and suitors, 
in their own courts baron, and other courts, or to have their wills there proved, in case 
they made any disposition. Afterwards the Crown, in favor of the church, invested 
the prelates with this branch of the prerogative; which was done, saith Perkins, 
because it was intended by the law that spiritual men are of better conscience than lay¬ 
men, and that they had more knowledge what things would conduce to the benefit of 
the soul of the deceased. The goods therefore of intestates were given to the ordinary 
by the Crown; * * * and as he had thus the disposition of intestates’effects, the 

probate of wills of course followed. (Book II, p. 491.) 

Continuing in chapter seven of the third book of his commentaries, 
Blackstone, in discussing the jurisdiction of ecclesiastical courts, says: 

Testamentary causes are the only remaining species belonging to the ecclesiastical 
jiuisdiction; which, as they are certainly of a mere temporal nature, may seem at first 
view a little oddly ranked among matters of a spiritual cognizance. And indeed they 
were originally cognizable in the King’s courts of common law, viz, the county courts; 
and afterwards transferred to the jurisdiction of the church by the favor of the Crown 
as a natural consequence of granting to the bishops the administration of intestates’ 
effects. * * * At what period of time the ecclesiastical jurisdiction of testaments 
and intestacies began in England is not ascertained by any ancient writer. * * * 

It appears that the foreign clergy were pretty early ambitious of this branch of 
power. * * * It fell within the jurisdiction of the spiritual courts by the ex¬ 
press words of the charter of King William I, which separated those courts from the 
temporal. And afterwards, when King Henry I, by his coronation charter, directed 
that the goods of an intestate should be divided for the good of his soul, this made 
all intestacies immediately spiritual causes, as much as a legacy to pious uses had 
been before. This, therefore, we may probably conjecture, was the area * * * 
when the King, by the advice of the prelates and with the consent of the barons, 
invested the church with this privilege. (Book III, p. 95-97.) 

As far as we are able to ascertain these deductions of Blackstone 
are based upon the rulings of the courts in the Hensloe case (Coke’s 
Reports, Part IX, 36 b) and in Snelling’s case (Coke’s Reports, Part 
V, 32 b). 

The court in Snelling’s case held that: 

If the ordinary took the goods into his possession, he was chargeable by the common 
law. And the statute of West. cap. 19 was made in affirmance of the common law. 

The history of the law, as recited in the Hensloe case, seems to have 
met the approval of the annotator of Coke’s Reports, who, in com¬ 
menting upon the same, uses the following language: 

It appears to have been a matter of great controversy to whom the probate of wills 
and granting of administration originally belonged, and whether these matters were 
entirely of ecclesiastical cognizance; the better opinion seems to be that the probate 
of testaments did not originally belong to the ecclesiastical jurisdiction. 

Again he says: 

W ills may be proved, i. e., recorded in any of the courts of common law at W^est- 
minster and so likewise in the courts of equity, as the chancery of exchequer; so also 
in the chamber of the city of London, and divers other cities and towns; and many 
lordships and manors have an original right of proving wills. And upon the whole it 
appears, clearly, that the claim and practice of the spiritual courts in this particular 
was originally a mere usurpation. 


CHAEGES AGAINST JUDGE LEBBEUS R. WILFLEY. 41 

This is also the view taken by Professor Stubbs in his work on the 
Constitutional History of England. He says: 

The whole jurisdiction in questions of marriage was, owing to the sacramental char- 
actp ascribed to the ordinance of matrimony, throughout Christendom a spiritual 
jurisdiction. The ecclesiastical jurisdiction in testamentary matters and the admin¬ 
istration of the goods of persons dying intestate was peculiar to England and the sister 
kingdoms, and had its origin, it would appear, in times soon after the Conquest. In 
Anglo-Saxon times there seems to have been no distinct recognition of the ecclesias¬ 
tical character of these causes, and even if there had been they would have been 
tried in the county court. Probate of wills is also in many cases a privilege of manorial 
courts which have nothing ecclesiastical in their composition, and represent the more 
ancient moots in which no doubt the wills of the Anglo-Saxons were published. As, 
however, the testamentary jurisdiction was regarded by Glanvill as an undisputed 
right of the church courts, the date of its commencement can not be put later than the 
reign of Henry I, and it may possibly be as old as the division of lay and spiritual 
courts. (Vol. Ill, p, 344.) 

The trust thus vested in the prelates in the course of time was 
grossly abused. “The common law did not make him [the ordinary], 
being a spiritual governor, subject to temporal suits for such things. 
And this was a great defect in the common law.” Graysbrook v. 
Fox, I Plowd., 275, 277.) 

The popish clergy, says Blackstone, took to themselves (under the name of the 
church and the poor) the whole residue of the estate of the deceased, after the portes 
rationabiles, or two-thirds, of the wife and children were divided, without paying 
even his debts or other charges thereon. This led to the enactment of the Statute of 
Westminster II, directing the ordinary to pay the intestate’s debts so far as his goods 
would extend. .But even after this check to the exorbitant power of the clergy, 
whereby the ordinary was made liable to creditors, yet the residuum after payment 
of debts still remained in their hands, to be applied to whatever purpose his conscience 
should approve. It was the flagrant abuse of this power that again called for legisla¬ 
tive interposition; by the Statute of 31 Edward III (c. 11), the estates of deceased 
persons were directed to be administered by the next of kin of the deceased, if he 
left no will, and not by the ordinary or any of his immediate dependents. (Woerner, 
American Law of Administration, Vol. I, p. 316.) 

This statute put the representatives of the estates of intestates 
upon the same footing with respect to suits and accounting as execu¬ 
tors and made them officers of the ordinary. By the Statute of 21 
Henry VIII (c. 5), the discretion of the ordinary in the appointment 
of administrators to intestate estates was enlarged, so as to authorize 
the appointment of either the widow or the next of kin, or both. 
The Statutes of Distribution, 22 and 23 Charles II (c. 10), and 29 
Charles II (c. 30), made distributable among the widow and next of 
kin, leaving in the hands of the administrator for his own use the 
third formerly retained by the church, until finally by the first statute 
of I elames II (c. 17) this third was made distributable, as well as the 
remainder of the intestate estate. (1 Bradford Surrogate Reports, 
26; Woerner, American Law of Administration, vol. 1, p. 316; 
Blackstone, Book II, p. 494, 495.) 

The powers of the spiritual courts were thus restricted to the judi¬ 
cial cognizance of the class of cases arising out of the probate of wills, 
the granting of administration, and the payment of legacies, and 
thus remained until by the statute creating the court of probate their 
powers in this respect were wholly abrogated. (20 and 21 Victoria, 
c. 77.) 

We have thus traced in brief outline the history of the law of admin¬ 
istration of estates in England, wherein it appears that it was a mat¬ 
ter cognizable by the common law and in the common law courts until 
about the period of the Norman Conquest; that thereafter the juris- 


42 


CHARGES AGAINST JUDGE LEBBEUS B. WILFLEY. 


diction over the estates of deceased persons was transferred to eccle¬ 
siastical courts, proceedings in which, says Blackstone, “were regu¬ 
lated according to the practice of the canon and civil law, or rather 
according to a mixture of both, corrected and new modeled by their 
< eculiar usages and interpositions of courts of common law/’ 



III, p. 100.) 


It now becomes necessary to consider how far the principles of the 
common law thus established and the statutes passed in aid thereof 
were introduced into the various States of the Union, and became 
incorporated into the American law of administration. 

“The Enghsh law of devise,” sa^^s Chancellor Kent, “v/as imported 
into this country by our ancestors, and incorporated into our colonial 
jurisprudence, under such modifications, in some instances, as were 
deemed expedient.” (4 Commentaries, 504.) 

In discussing the administration of the estates of intestates the 
same author makes the following comment: 

To avoid repetition and confusion I shall be obliged to confine myself essentially 
to the discussion of the leading principles of the English law and assume them to be 
the law of the several States in all those cases in which some material departure from 
them in essential points can not be clearly ascertained. * * * 

(1) Of granting administration .—When a person died intestate in the early periods 
of the English history his goods went to the King as the general trustee or guardian 
of the state. This right was afterwards transferred by the Crown to the popish clergy; 
and, we are told, it was so flagrantly abused that Parliament was obliged to interfere 
and take the power of administration entirely from the church and confer it upon 
those who were disposed to a faithful execution of the trust. This produced the Stat¬ 
utes of 31 Edward III (c. 11) and 21 Henry VIII (c. 5), from which we have copied 
the law of granting administration in this country. * * * 

Before the Revolution the power of granting letters testamentary and letters of 
administration resided in New York, in the colonial governor, as judge of the preroga¬ 
tive court, or court of probates of the colony. It was afterwards vested in the court 
of probates. (2 Commentaries, 408-409.) 

The learned chancellor then proceeds to give an account of the 
development of the probate courts, and the law of administration in 
New York, and indicates that the same were modeled after and based 
upon the principles of the common law. 

Judge Woerner, in his chapter on the subject of the probate powers 
as they exist at common law and under the English statutes, uses 
the following language: 

The common law of England as affected by the statutes above named [and others 
relating to probate, which] were enacted before the settlement of the American colo¬ 
nies, is at the basis of the American statutes concerning administration, and the law 
in the American States in so far as it has not been supplanted by their own statutes. 
(Woerner, American Law of Administration, vol. 1, p. 316.) 

He further states that the origin of our probate system referable to 
the English spiritual courts is still recognizable in the decisions of 
some States as to their mode of procedure, although the rules of the 
civil and common law which govern the ecclesiastical courts are 
necessarily greatly modified in the adaptation to widely different cir¬ 
cumstances and to the spirit of the American people. In New Hamp¬ 
shire courts of probate “have a very extensive jurisdiction not con¬ 
ferred by statute, but by general reference to the law of the land; 
that is, to that branch of the common law known and acted upon for 
ages, probate or ecclesiastical law.” (Morgan v. Dodge, 44 N. H., 
255, 258.) In California the superior court is by the constitution 
invested with jurisdiction over probate matters as a part of its general 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


43 


jurisdiction the same as its common law and equity powers, and is 
not, therefore, a statutory tribunal, although controlled in the mode 
of its action by the code. (Burris v. Kennedy, 108 Cal., 331, and 
Heydenfeldt v. Superior Court, 117 Cal., 348.) 

While American courts of probate may properly be said to be 
purely creatures of statute at the present time, yet, as Judge Woerner 
has pointed out, the law administered by them is unquestionably 
based upon the common law as administered in the acts of Parlia¬ 
ment prior to the date of the transfer of sovereignty. We think 
there can be no question about the proposition that Congress meant 
to extend the law of the administration of estates to China under the 
term ‘‘common law” as fully as it meant to extend the law of crimes, 
which must have been its first consideration in enacting the statutes 
for the purpose of carrying into force and effect the treaties of extra¬ 
territoriality with China. 

We hold, therefore, that prior to the inauguration of this court the 
consular courts of the United States in China had jurisdiction on the 
matter of the estates of Americans decedent in China in all cases, 
and that now this court has jurisdiction in such matters when the 
value of the estate involved is about $500 United States currency, the 
consular courts retaining their jurisdiction over those estates which 
are valued at less than this amount. 

The will is admitted to probate and letters testamentary will issue 
forthwith. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, China, May 15, 1907. 

United States court for China, Shanghai, March 18. 

Reuben Rosser McDermid v. Alice Flynn McDermid. 

Divorce Proceedings. 

This is an action for divorce in which petitioner prays for an 
absolute divorce, the custody of the minor children, and for general 
relief. Petitioner alleges adultery as the ground for divorce. Defend¬ 
ant demurs to the petition on the ground that this court is without 
jurisdiction to hear and determine the case. 

This raises the question whether the United States court for China 
has authority to hear and determine matrimonial causes, including 
the power to grant absolute divorce and to decree separation from 
bed and board. 

The jurisdiction of this court is defined in sections 1 and 4 of the 
act of June 30, 1906, creating the court. Section 1 of said act pro¬ 
vides that: 

A court is hereby established to be called the United States court for China , which 
shall have exclusive jurisdiction in all cases and judicial proceedings whereof juris¬ 
diction may now be exercised by United States consuls and ministers by law and by 
virtue of treaties between the United States and China. 

(Jurisdiction in small civil and criminal cases excepted.) Section 4 
of said act provides that “The jurisdiction of said United States 
court, both original and on appeal, in civil and criminal matters, and 
also the jurisdiction of the consular court in China, shall in all cases 


44 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


be exercised in conformity with said treaties and the laws of the 
United States now in force in reference to the American consular 
courts in China, and all judgments and decisions of said consular 
courts, and all decisions, judgments, and decrees of said United 
States court shall be enforced in accordance with said treaties and 
laws. But in all such cases when such laws are deficient in the pro¬ 
visions necessary to give jurisdiction or to furnish suitable remedies, 
the common law and the law as established by the decisions of the 
courts of the United States shall be applied by said court in its deci¬ 
sions and shall govern the same, subject to the terms of any treaties 
between the United States and China.” 

It will thus be seen that the jurisdiction of this court is for all 
practical purposes the same as that exercised by the United States 
consuls and ministers in China prior to June 30, 1906, and no more. 

It now becomes necessary to determine the jurisdiction in judicial 
matters of the United States consuls and the United States minister 
in China prior to the above-mentioned date. This involves an exami¬ 
nation of the provisions of the treaties between the United States 
and China and the statutes of the United States passed pursuant 
thereto. The treaties between the United States and China of July 
3, 1844, and June 18, 1858, contain the following provision: 

All questions in regard to rights, whether of property or person, arising between 
citizens of the United States in China, shall be subject to the jurisdiction and regu¬ 
lated by the authorities of their own government. (Sections 15 and 27, respectively.) 

The ‘‘authorities” of the United States Government, referred to 
in the treaties, and the jurisdiction which thej" shall exercise are 
named and defined by an act of Congress passed for the purpose of 
carrying into effect the terms of said treaties. This subject is 
covered by sections 4083, 4085, and 4086 of the Revised Statutes, 
which read as follows: 

Sec. 4083. To carry into full effect the provisions of the treaties of the United States 
with China, Japan, Siam, Egypt, and Madagascar, respectively, the minister and 
the consuls of the United States, duly appointed to reside in each of those countries, 
shall, in addition to other powers and duties imposed upon them, respectively, by 
the provisions of such treaties, respectively, be invested with the judicial authority, 
herein described, which shall appertain to the office of minister'and consul, and be a 
part of the duties belonging thereto, where and in so far as the same is allowed by 
treaty. 

Sec. 4085. Such officers are also invested with all the judicial authority necessary 
to execute the provision of such treaties, respectively, in regard to civil rights, whether 
of property or person; and they shall entertain jurisdiction in matters of contract, 
at the port where, or nearest to which, the contract was made, or at the port at which, 
or nearest to which, it was to be executed, and in all other matters, at the port where, 
or nearest to which, the damage complained of was sustained, provided such port 
be one of the ports at which the United States are represented by consuls. Such 
jurisdiction shall embrace all controversies between citizens of the United States 
or others provided for by such treaties, respectively. 

Sec. 4086. Jurisdiction in both criminal and civil matters shall, in all cases, be 
exercised and enforced in conformity with the laws of the United States, which are 
hereby, so far as it is necessary to execute such treaties, respectively, and so far as 
they are suitable to carry the same into effect, extended over all citizens of the United 
States in those countries, and over all others to the extent that the terms of the treaties, 
respectively, justify or require. But in all cases where such laws are not adapted 
to the object, or are deficient in the provisions necessary to furnish suitable remedies, 
the common law and the law of equity and admiralty shall be extended in like manner 
over such citizens and others in those countries; and if neither the common law, 
nor the laws of equity and admiralty, nor the statutes of the United States furnish 
appropriate and sufficient remedies, the ministers in those countries, respectively, 
shall, by decrees and regulations which shall have the force of law, supply such 
defects and deficiencies. 


CHABGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


45 


It will be seen from these statutes that the jurisdiction, formerly 
exercised by consuls and ministers and now exercised by this court, 
to hear and determine causes, is drawn from four sources: 

First. The provisions of the treaties between the United States 
and China; 

Second. Those statutes of the United States suitable to carry 
said treaties into effect, which have been extended over citizens of 
the United States in China; 

Third. The common law, including equity and admiralty; and 

Fourth. The rules and regulations of ministers having the force 
of law, promulgated to supply defects and deficiencies in the laws of 
the United States and in the common law. 

I. It will be observed that the treaties merely outline in a general 
way the authority which shall be exercised by the Government of 
the United States in China over American citizens, leaving it to 
Congress to determine what tribunals shall exercise said authority, 
and the laws which said tribunals shall apply. It was manifestly 
the purpose of China to concede to the United States absolute and 
unqualified extraterritorial jurisdiction over her citizens in China. 
The question to be determined is how far Congress has gone in extend¬ 
ing a system of jurisprudence to American citizens in China. This 
requires an examination of the above-mentioned statutes. 

II. Turning now to a consideration of the statutes of the United 
States which have been extended to China, we find that no mention 
is made of the matter of granting divorce. It is but natural that 
this is so, because in the United States the regulation of all matters 
relating to the status of marriage is left to the States, in conformity 
with the provisions of Article X of the amendments to the Constitu¬ 
tion, which provide that— 

The powers not delegated to the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States, respectively, or to the people. 

It does not follow, however, that because Congress has not legis¬ 
lated on this subject for the people who live in the States, that it is 
without constitutional power to pass laws relating thereto applicable 
to American citizens living in China. It is sufficient to note here 
that up to the present time it has not done so. 

III. We now pass to a consideration of the common law as a source 
of authority for the exercise of jurisdiction over matrimonial causes. 
The term common law as used in the statute has been interpreted 
by this court in the case of the United States v. Biddle to mean: 

Those principles of the common law of England and those statutes passed in aid 
thereof, including the law administered in the equity, admiralty, and ecclesiastical 
tribunals, which were adapted to the situation and circumstances of the American 
colonies at the date of transfer of sovereignty, as modified, applied and developed 
generally by the decisions of the State courts and decisions of the United States courts, 
and incorporated generally in the statutes and constitutions of the States. 

It now becomes necessary to examine the provisions of the common 
law on the subject of divorce and judicial’’ separation. According 
to Blackstone the English law recognized two kinds of divorce, the 
one total and the other partial—the one a vinculo matrimonii and 
the other merely a mensa et thoro. 

The total divorce must be for some of the canonical causes of the impediment 
existing before marriage, for in the case of total divorce the marriage is declared null, 
as having been absolutely unlawful ab initio, while, divorce a mensa et thoro is nothing 


46 


CHAKGES AGAINST JUDGE LEBBEUS K. WILFLEY. 


more than separation, which does not nullify the marriage. With us in England 
adultery is only a cause for separation from bed and board. (1 Blackstone’s Commen¬ 
taries, p. 141.) - 

According to the earlier law of England, a marriage valid at the time of its solemni¬ 
zation was held to be indissoluble. Conjugal infidelity only furnished a ground for 
separation, but nothing short of death could release the nuptial bond. A complete 
annulment of the tie could only be obtained by the establishment of some antecedent 
impediment, such as undue consanguinity, physical incompetence, or mental incapac¬ 
ity. Until about the commencement of the eighteenth century the ecclesiastical 
courts exercised exclusive jurisdiction over the subject of divorce. The ecclesiastical 
courts refusing to grant divorce a vinculo, even in cases of greatest conjugal delin¬ 
quency, induced applications to Parliament, and it is said the first genuine example of 
a dissolution of the nuptial tie was in the case of the notorious mother of the highly 
gifted but unfortunate poet. Savage—the Countess of Macclesfield. Since that time 
the Parliaments have exercised the power of annulling absolutely the marriage bond. 
(Wright V. Wright’s Lessees, 14 American Decisions, 725.) 

The authorities all agree that prior to 1776 all judicial power to 
deal with divorce causes was vested exclusively in the ecclesiastical 
courts, and such power was limited to separation from bed and 
board, and that prior to that date all power of absolutely annulling 
the marriage bond was exercised by Parliament alone. The courts 
also hold uniformly that the power to grant a divorce in the United 
States is a statutory and not a common-law power. It is usually 
vested in courts of law and equity, although in a few cases probate 
courts have been vested with this authority. In the absence of 
constitutional provisions or express legislation, no American tribunal 
has jurisdiction to grant divorce. (Sharon v. Sharon, 69 Cal., 209.) 

This disposes of the common-law authority for granting an abso¬ 
lute divorce, but leaves to be considered the question whether there 
is sufficient warrant in the common law as above defined to authorize 
this court to grant a separation from bed and board. This involves 
a consideration of the question whether the law on this subject, as 
administered by the ecclesiastical courts, constituted a part of the 
common law of England, which was introduced into the United 
States at the date of the change of sovereignty. As above pointed 
out, at the time we derived our common law from England, the 
ecclesiastical or church courts had exclusive jurisdiction of causes 
relating to marriage and divorce. It was a dogma of the church 
that marriage was a divine institution, a sacrament not to be dissolved 
by divorce unless by direction of the head of the church. Marriage 
was, therefore, within the control of the church courts, and the civil 
courts had no jurisdiction. Whilst the principles of the common law 
which were applicable to the colonies were introduced into the United 
States and became the common law of the various States, yet not all 
of the ecclesiastical law was suited to the conditions and wants of the 
people. There were no ecclesiastical courts to administer the ecclesi¬ 
astical law, and courts of equity and common-law jurisdiction had no 
jurisdiction to bear and determine divorce causes until it was conferred 
upon them by statutes, and the statutes on the subject subsequently 
passed did not confer the full jurisdiction of the ecclesiastical courts 
upon the State courts, but only jurisdiction to grant divorce and annul 
marriage in certain cases specified therein. The ecclesiastical law as 
a whole was not, therefore, adopted as a part of our common law. The 
jurisdiction conferred by the statutes was special and limited to 
the causes for divorce enumerated therein. Bishop, in his work on 
Marriage and Divorce, contends that the fact that there were no courts 
in the colonies in which to administer the law of divorce as established 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


47 


in the ecclesiastical courts is not a sufiicient reason to warrant the con¬ 
clusion that the common law of divorce did not follow the colonists to 
America. He says: 

As just stated in brief, English colonists to an uninhabited country carry with 
them to their new locality their English laws, except such as are inapplicable to their 
altered relations and circumstances. This general doctrine, in its applicability to 
this country, is everywhere recognized by our courts, and in most of the States it has 
been confirmed either in the written constitution or by legislative enactment. Nor 
is it material to this doctrine in what tribunal, in England, a law in question is there 
administered. Since every law from the mother country presents itself to a colony 
separated from the court of its origin, never, in reason, can its adoption or rejection 
depend on the name or constitution of such court. In accord with this view is the 
language of the books, “all laws,” and, though in some of the American cases the 
term “common law” is used, the broad meaning of the term, riot its narrow and 
technical one, is intended. Moreover, the courts of England have specifically held 
that the matrimonial law of the ecclesiastical tribunals is a branch of the law which 
the colonists take with them. 

The position of Professor Bishop, however, is controverted by 
Chancellor Sanford in the case of Burtis v. Burtis. (1 Hopkin’s Chan¬ 
cery, 557, New York; 14 American Decisions, 563.) This is the 
leading case on the question now under consideration, and Chancellor 
Sanford treated the subject in an exhaustive manner. Since this 
court is inclined to adopt the views announced by the learned chan¬ 
cellor, his opinion will here be quoted extensively. Pie says: 

The colony of New York never had any court possessing jurisdiction of matrimonial 
causes or power to grant divorce. No statute defining the causes of divorce or author¬ 
izing divorces in any case whatever was ever enacted by the legislature of the colony. 
Some special applications for divorces were made to the colonial legislature, but all 
such applications were refused. The governor of the colony, with the consent of the 
council, had power to establish courts of justice, and all the courts of the colony 
derived their origin from this source of authority; but no court having cognizance 
of matrimonial causes or divorces was ever established in the colony. No court of 
the colony exercised very much jurisdiction and no law concerning divorce was ever 
enacted by the colonial legislature. It thus appears that the law of England con- 
cernmg divorces and matrimonial causes was never adopted by the colony of New 
York. It was not adopted in fact or in practice,, and it was never the law of 
the colony. 13y the constitution of the State adopted in 1777 such parts of the 
common law of England and the statute law of England and Great Britain and 
of the acts of the legislature of the colony as together formed the law of the colony 
on the 19th day of April, 1775, were declared to be the law of this State. The law of 
the colony was thus adopted as the law of the State. The law of England concerning 
divorces and matrimonial causes not forming a part of the law of the colony, did not 
become the law of the State. I can not admit that we have any other code oh the same 
subject and that the laws of England concerning divorces are also laws of this State. 
The English law concerning divorces and causes of divorce, as it exists now and as 
it existed while this State was a colony, is chiefly the ecclesiastical law and not the 
common law of that country. It is administered by judges and courts whose juris¬ 
diction has never existed either in the State or the colony of New York, and it was 
evidently regarded by our ancestors of the colony and of the State as no part of the 
common law which they adopted. Our statutes are clearly original regulations, 
intended to authorize divorces in cases in which no divorce could before be obtained. 
They define the causes for which divorces shall be granted, they give jurisdiction of 
those cases to this court, and they give no other jurisdiction. The specified cases are, 
with some differences, causes of divorce by the laws of England; but these statutes 
are evidently founded on the supposition that the causes of divorce which they 
define were not causes of divorce by any preexisting^ law in force in this State. In 
every view of these acts of our legislature they are’substantive laws, authorizing 
divorces in the cases which they specify, and not authorizing divorce in any other 
case or for any other cause. 

In our view the reasoning of the learned chancellor as above set 
forth is entitled to greater weight than the ingenious and plausible 
argument of Professor Bishop and appears to be better supported by 
the authorities. 


48 CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

That no court has a right to take jurisdiction of matters relating 
to the status of marriage unless such jurisdiction has been specially 
conferred by statute is a principle firmly established in American 
law and universally appliecl by American courts. 

A divorce can not be had except m that court upon which the State has conferred 
jurisdiction, and it can be had for those causes only, and with those formalities only, 
which the State has by statute prescribed. (Dennis v. Dennis, 68 Connecticut, 186; 
De Meli v. De Meli, 67 Howard Pr., N, Y., 20.) 

In view of this rule and the fact that all of the States have dealt 
with the subject of matrimonial causes originally and with such 
striking lack of uniformity, we are of opinion that the law of divorce 
as administered by the ecclesiastical courts of England has not been 
adopted generally by American tribunals as the basis of their deci¬ 
sions on the subject of divorce, and has not formed the substratum 
of the law of divorce as enacted by the various States; hence we 
conclude that said ecclesiastical law did not become a part of the 
common law within the meaning of that term as it has been inter¬ 
preted by this court. 

IV. This leaves for consideration the question' whether the regu¬ 
lations of the minister on the subject of divorce conferred jurisdiction 
upon this court to hear and determine matrimonial causes. Without 
entering upon a discussion of the question whether Congress has the 
constitutional right to delegate its legislative powers to a United 
States minister to a foreign country, it is sufficient for our purposes 
to inquire if our minister has actually promulgated rules and regula¬ 
tions prescribing causes for divorce in China. The regulations of 
the minister on this subject are found in section VII of the consular 
court regulations of 1864, and are as follows: 

SECTION VII, DIVORCE. 

46. Libels for divorce must be signed and sworn to before the consul, and on the 
trial each party may testify. 

47. The consul, for good cause, may order the attachment of libeller’s property to 
such an amount and on such terms as he may think proper. 

48. He may also, at his discretion, order the husband to advance to his wife, or pay 
into court, a reasonable sum to enable her to prosecute or defend the libel, with a 
reasonable monthly allowance for her support, pending the proceedings. 

49. Alimony may be awarded or denied the wife on her divorce at his discretion. 

50. Custody of the minor children may be decreed to such party as justice and the 
children’s good may require. 

51. Divorce releases both parties, and they shall not be remarried to each other. 

52. Costs are at the discretion of the consul. 

It will be seen from the foregoing regulations that they do not 
undertake to prescribe the causes for which divorce may be granted, 
but purport to be little more than rules of procedure. 

It thus appears (a) that our treaties with China contain no specific 
provision on the subject of divorce; (b) that the statutes of the United 
States which have been extended to China are also silent on this 
subject; (c) that the common law in force in China does not embrace 
the subject of matrimonial causes, and {d) that the minister has not 
issued regulations prescribing grounds on which divorce or judicial 
separation shall be granted. 

In view of the foregoing facts, and the rule universally adopted 
by the courts of the United States that courts have no jurisdiction 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


49 


in matrimonial causes except when specifically conferred by statute, 
we hold that the United States court for China is without jurisdiction 
to hear and determine matrimonial causes. 

The demurrer is sustained and plaintiff’s petition is dismissed with 
costs. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

United States Court for China. 

Frazar cfc Co. v. Boston S. S. Co. and Boston Tov:hoat Co. 

JUDGMENT. 

The question involved in this case is one of fact and not law. The 
evidence produced at the trial disclosed the following facts: 

On the 24th day of September, 1906, the Centennial Milling Company 
an American corporation, shipped from Tacoma, Wash., to its con¬ 
signee, Frazar & Co., at Shanghai, China, 100,000 sacks of flour, on 
defendant’s steamship Tremont. It was admitted of record by coun¬ 
sel that the said ‘^steamship Tremont, of the Boston Steamship Com¬ 
pany, when she left Tacoma, was in all respects seaworthy, and 
properly manned, equipped, and supplied.” Section 10 of the bill of 
lading on which the flour was shipped provides that ‘^The steamship 
company shall not be accountable for loss or damage from * * * 

the insufficiency of packages.’ ’ When the cargo reached Frazar & 
Co., it was found that 3,523 bags were in a damaged condition. The 
flour was packed in bags made of the material known as ^‘standard 
quality.” This so-called ^ ^standard ” bag is in general use by all ship¬ 
pers engaged in the flour trade between America and China. Thfe 
value of the flour was 1.40 taels per bag. Plaintiffs refused to receive 
the damaged bags and sued for 4,932.20 taels, the value of all the 
damaged bags at 1.40 taels per bag. The court ordered the damaged 
cargo sold at public auction and it brought 2,040 taels. The charges 
incident to said sale were 310.97 taels, making an actual loss of 3,203.17 
taels. The dispute arises over the facts which caused the loss. 

The defendants attempt to exonerate themselves by showing that the 
loss was due to ‘Hhe insufficiency of the packages;” that is to say, to 
the inferior quality of the bags in which the flour was shipped. The 
plaintiffs, on the other hand, contend that the loss was occasioned by 
the careless and reckless manner in which the flour was unloaded at 
Woosung. 

The support of their contention defendants introduced a number of 
witnesses who testified that in their opinion the loss was occasioned by 
the inferior quality of the bags. Mr. P. Chambers, in charge of the 
Shanghai and Hongkong wharf at Pootung, stated that his observation 
was that bags in which flour was shipped had become decidedly inferior 
during the last five or six years. He stated that they are not strong 
enough now for the ordinary wear and tear of loading and discharging, 
and that 3^ per cent of breakage is not much these days. Such loss 
does not indicate careless handling, but may be expected from the 
weakness of the bags used. He also testified that at the present time 
all flour cargoes are carefully handled. 


29865—08-4 



50 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


Mr. William Paulsen, Lloyd’s surveyor at Shanghai, also testified 
on behalf of the defendants. He stated that the bags in which flour 
is packed had been growing thinner in recent years, and that the 
percentage of breakage nowadays is higher than 3 per cent. He 
attributed the loss sustained in the present case to the weakness of 
the bags in which the flour was shipped. Two bags of flour which 
were taken from the cargo in question were exhibited in court, and 
Messrs. Chambers and Paulsen were called upon to examine and ex¬ 
press their opinion in regard to the quality of the same. Mr. 
Chambers said that the two bags produced were the usual style of 
bags now used for packing flour, and Mr. Paulsen, after testing them, 
pronounced one of them ‘‘extraordinarily strong” and the other, he 
said, was not quite so strong. Defendants next introduced Mr. 
Alfred Cartwright, wharfinger in charge of the Eastern wharf at 
Pootung, who testified that he was in charge of the unloading of this 
flour from the lighters. The condition of the cargo as landed from 
the Tremont, he said, was very bad. Many of the bags were broken. 
He further stated that he had never seen a cargo in which so many 
bags were broken. Mr. T. H. Harris, acting general manager of the 
China Merchants wharves, said he saw part or the cargo in question 
discharged. His opinion was that the cargo was in a very ruinous 
condition. He saw many of the bags broken; and although they 
were handled carefully while under his observation, others were break¬ 
ing. His conclusion was that the bags containing the flour were of 
inferior quality. 

Plaintiffs then put on stand Messrs. W. S. Emens and G. W. 
Brush in rebuttal and in support of their contention that the dam¬ 
aged cargo resulted from the reckless and careless manner in which 
the cargo was discharged at Woosung. Mr. Emens, manager of 
plaintiffs’ firm, stated that he had been in business in China for 
twelve years, during which time he had had considerable experience in 
the importation of flour. He stated that the material used in the 
bags was what is known as “standard quality” and has been in use 
here for years, and he expressed the firm and emphatic opinion that 
there had been no deterioration in the quality of bags, as alleged. 
He also testified that the percentage of breakage of the bags of flour 
in the cargo involved in this suit was greater than that of any previous 
or subsequent shipment of the same brand of flour handled by his 
firm. He testified that on several occasions he had imported flour 
from the same mill, packed in the same manner, for Tientsin and 
Newchwang, and in each of these instances the percentage of break¬ 
age was so small as to be a negligible quantity, although, he said, dis¬ 
charging at these two ports is attended by greater difiiculties than at 
Shanghai or Woosung. . Mr. Brush was next called. He stated that 
he was on board the Tremont for three hours during a day on which 
she was discharging cargo. He was there to look after the discharge 
of the cargo belonging to his firm of M. J. Connell & Co. He stated 
that both slings and slides were used in discharging. The use of slides 
was not confined to the lower cargo parts of the ship, but slides were 
used from the upper ports and decks as well. The ship had on board 
both wheat and flour, and although the wheat was heavier than the 
flour, both were discharged into the lighters indiscriminately, wheat 
being piled on top of flour and flour on top of wheat. His attention 
was called to the fact that in one hold 40 sacks of flour fell from the 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 51 

sling at one time and all were broken: He called this incident to the 
attention of the chief officer, who replied that the ship was in a hurry 
and that the discharging force were under rush orders and*were working 
day and night. He saw bags of flour split as they slid down into the 
lighters, and did not see anyone superintending the coolies in the 
lighters. His firm lost 1 per cent of its cargo on this occasion, which 
was greater than had ever been previously sustained. 

The foregoing is in substance the evidence adduced at the trial of 
this case. It will be observed that there is a conflict of testimony 
on two vital points, viz, {a) the percentage of loss resulting from 
breakage of bags at the present time in Shanghai; and (6) the proba¬ 
ble cause of the. loss sustained in the shipment under consideration. 
Messrs. Chambers and Paulsen state that the usual loss from breakage 
is from 3 to SJ per cent. The other four witnesses disagree with 
these gentlemen and place the percentage at a much smaller figure. 
The actual loss in this case was about 2 per cent, and Mr. Harris 
(defendants’ witness) considered the cargo in. a ^Huinous condition” 
when it reached the wharf. Mr. Cartwright (defendants’ witness 
also) testified that '^he had never seen a cargo in which so many 
sacks were broken.” Mr. Brush considered 1 per cent large, and 
Mr. Emens’s experience was that losses from breakage were ordinarily 
a negligible quantity. In view of this testimony and the probabilities 
of the case, the court is inclined to think that the estimate of Messrs. 
Paulsen and Chambers is too high. Such losses would impair if they 
would not destroy the trade, and it does not stand to reason that 
shippers would tolerate such a condition, especially in view of the fact 
that only a part of loss thus sustained, if applied to the improvement 
of the quality of the bag, would produce an article of unquestioned 
strength. 

The court is disposed to accept the opinion of the other four wit¬ 
nesses, especially of witnesses Emens and Brush, to the effect that the 
actual loss from breakage alone is usually less than 1 per cent. 

This brings us to a consideration of the second question in which 
the testimony of witnesses is at variance, namely, as to the sufficiency 
of the bag used. Was it of inferior quality or not? On the one 
hand, we have the testimony of defendants’ four witnesses that the 
bage were of inferior quality. On the other hand, Messrs. Emens 
and Brush state that they were strong enough to meet the demands 
of the trade. Corroborating the position of Messrs. Emens and Brush 
we have two significant facts: First, that the sample bags which 
were exhibited in court were strong and of good quality (one was of 
extraordinary strength, in the opinion of defendants’ witness Paul¬ 
sen) ; and second, that bags used were of the quality known as ‘^stand¬ 
ard.” This last-mentioned fact, is, in the opinion of the court, en¬ 
titled to great weight and goes far toward determining the fate of this 
controversy. 

What does the fact that a bag is 6f “standard” quality signify? 
It means that merchants who are engaged in the flour trade between 
America and China have adopted as “standard” that quality of bag 
which experience has demonstrated to be the best adapted to the 
uses of the trade. Commerce is a severely practical institution. 
The customs of merchants and the laws of trade are usually based 
upon experience and sound judgment. The “standard” bag thus 
adopted by merchants will not likely be changed until experience 


52 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


demonstrates that it is no longer fitted for the purposes for which it 
was adopted. The testimony before the court is not such as to 
justify a ruling to the effect that the so-called ‘‘standard’’ bag in 
general use here is of inferior quality and insufficient for the demands 
of the trade. Hence defendants’ theory that the loss in this case 
resulted from insufficient packing due to the inferior quality of the 
bag used is rejected by the court. 

Turning now to the contention of plaintiffs that the loss was 
occasioned by careless and reckless handling at the port of discharge, 
we have the uncontradicted testimony of Mr. Brush, who was on the 
Tremont when the cargo in question was discharged and who was an 
eyewitness to the manner in which it was handled. He states that 
the cargo was unloaded in great haste and in a careless manner. In 
his testimony above outlined he gives a number of particular in¬ 
stances, all of which go to show that his testimony is entitled to 
weight and that the facts he relates therein are probably true. 

In view of the foregoing testimony and all of the circumstances 
surrounding the case, the court is convinced that the loss in this case 
was occasioned by the careless and reckless manner in which the 
cargo was unloaded at the port of Woosung. 

Judgment is therefore rendered in favor of plaintiffs in the sum of 
3,203.17 taels and costs. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, March 7, 1907. 

United States Court for China. 

Civil case.—Hillehrandt db Co. v. Zimmermann & Co, 
“Delivery” by Carriers at Sea Defined. 

JUDGMENT. 

This is a suit to recover 1,003.20 rubles, the value of the shortage 
on a cargo of flour shipped by plaintiff from Shanghai to Vladivostok 
by defendants’ steamship Hennamet. Defendants deny liability and 
file a set-off of $393.09 Mexican. The testimony disclosed the fol¬ 
lowing facts: During March, 1906, plaintiff shipped 6,900 sacks of 
flour from Shanghai to Vladivostok by defendants’ steamer Henna- 
met. Plaintiff, Mr. A. Hillebrandt, went to Vladivostok on the 
Hennamet for the purpose of looking after and disposing of his cargo. 
Mr. M. A. Katz also went to Vladivostok on the Hennamet as a repre¬ 
sentative of Zimmermann & Co. Six thousand nine hundred sacks 
of flour were loaded on board the Hennamet at Woosung about the 
1st of March, 1906. The contract of shipment was an ordinary 
bill of lading in which A. Hillebrandt was consignee. The Hennamet 
arrived at Vladivostok on or about the 10th of the month. The 
vessel remained in the harbor for two days and then went alongside 
the wharf and discharged her cargo. The vessel’s entire cargo was 
discharged in about seven days. Mr. Hillebrandt proceeded to sell 
his cargo immediately, and before he left Vladivostok, which was 
^,bout the 17th of March, he had sold the entire cargo and delivered 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 53 

from the wharf all except a small portion of it. He testified on this 
point as follows: 

I had disposed of all the flour before it was discharged. I took delivery of it as fast 
as it was discharged. I saw my cargo out on the jetty. It was four or five days before 
I received the last of it. I left for Shanghai the same day on which the last of cargo 
was discharged. 

The testimony is conclusive that all of the ship’s cargo was dis¬ 
charged on the wharf at Vladivostok while Mr. Hillebrandt was in 
Vladivostok. No evidence was produced to show what length of 
time intervened between Mr. Hillebrandt’s departure from Vladi¬ 
vostok and the date on which the parties to whom he had sold the 
last of his fiour applied for the same at the wharf. Mr. Katz testified 
that part of plaintiff’s cargo remained on the wharf for a period of 
two weeks, during which time he took all the precautions possible 
under the circumstances to protect from theft and exposure. The 
testimony shows that there is no custom in Vladivostok under which 
merchants are allowed a certain time in which to remove their goods 
from the wharves. The rule is that they must take charge of their 
cargo at once. When Mr. Hillebrandt arrived in Shanghai he received 
notice from Vladivostok of a shortage of 456 bags. He returned to 
Vladivostok about a month later and verified the shortage. 

The foregoing facts give rise to two questions, as follows: 

First. Was the discharge of plaintiff’s cargo on the wharf at Vladi¬ 
vostok a delivery within the meaning of the law relating to the duties 
and liabilities of carriers at sea? 

Second. If this question be answered in the negative, are defend¬ 
ants liable for the shortage disclosed by the evidence in this case? 

It becomes necessary to determine what, in the eye of the law, con¬ 
stitutes a complete delivery. The authorities discuss this subject 
under two heads, viz, the duties of a common carrier in those cases 
(a) where the consignee is not present, and (b) where he is present at 
the point of destination, to take over the goods upon arrival. In 
this instance it is not necessary to consider the first set of cases, be¬ 
cause the plaintiff, Mr. Hillebrandt, went along with the cargo on 
the Hennamet for the purpose of taking charge and disposing of it 
at Vladivostok. The question of what constitutes delivery in the 
second set of cases, namely, when the consignee has due notice and is 

E resent at the point of destination when the goods arrive, was settled 
y the Supreme Court of the United States in the case of Richardson v. 
Ooddard, reported in 23 Howard, 28. The facts m that case were as 
follows: The barque Tangier arrived in the port of Boston on the 8th 
of April with a cargo of cotton. She commenced the discharge of 
her cargo on a Monday, and on the same day the master gave notice 
to the consignees of his readiness to deliver the goods. On Wednes¬ 
day all of the cotton which had been unloaded on Monday and Tues¬ 
day was removed except 325 bales, which remained on the wharf 
over night. The unloading was completed on Thursday at 5.10 p. m. 
About 3 p. m. of the next day the cotton remaining on the wharf 
was consumed or damaged by an accidental fire. The contract of 
the carrier was to deliver in like good order and condition at the port 
of Boston unto Goddard & Pritchard. The court there decided that 
by the commercial and maritime law it is a settled rule that a carrier 
by water shall carry from port to port and from wharf to wharf, and 
is not bound to deliver at a warehouse or business place of the con- 


54 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


signee. It also held that goods delivered at a proper wharf at a 
proper time with notice to consignee is a good delivery. In Goodwin 
V. The Baltimore and Ohio Railroad (50 New York, 149) the court 
held that— 

where the proper consignee of the goods is present, accepts the consignment, and pays 
the freight and the goods are accordingly unloaded with reasonable opportunity for 
him to remove them, custody is transferred from the carrier and responsibility devolves 
upon the consignee to secure them from the weather and depredation, and otherwise 
make disposition of them. (Schouler, Bailments and Carriers, sec. 504.) 

The text writers take a similar view of the subject as that laid down 
by the courts. 

The rule long since mentioned in Great Britain [says Schouler], where goods are 
brought by water, is that delivery on the usual wharf will discharge the carrier, and 
such also is the American rule. This is particularly true of transportation between 
foreign ports, which for centuries has involved the use of bills of lading. The usage at 
the present day generally requires the consignee to take off his merchandise in lighters 
from the vessel’s side on its arrival in port; otherwise the carrier shall land the goods on 
the wharf and finally shall warehouse them if they are not called for in a reasonable 
time. Personal delivery dispenses with “personal notice ” and affording “reasonable 
opportunity” to remove the goods. (Schouler, Bailments and Carriers, sec. 511; see 
also Thompson v. Sullivan, cited, sec. 359.) 

All of the elements of delivery as defined by the foregoing authori¬ 
ties are present in this case, and I hold that the cargo in question 
was legally delivered to plaintiff at Vladivostok when it was dis¬ 
charged upon the wharves in the presence of Mr. Hillebrandt himself, 
and that the custody thereof and liability therefor then passed from 
defendants to plaintiff. 

In view of this holding it is not necessary to consider the second 
proposition above mentioned as to the duties and liabilities of a car¬ 
rier after the cargo had been discharged upon the wharf, had there not 
been a personal delivery to the consignee. 

This leaves to be disposed of the matter of the set-off contained in 
defendants’ answer. A set-off is a counterdemand generally of a 
liquidated debt growing out of a separate transaction for which an 
action might be maintained by the defendant against the plaintiff to 
recover a judgment in his own favor. Such is the character of the 
cross action in this case. This court has no jurisdiction to give a 
judgment in such a case, because it is without power to enforce 
judgment against anyone other than an American citizen. It has 
been held by United States Attorney-General Speed that in cases 
between a foreign plaintiff and an American defendant, where the 
foreigner establishes his claim against the American, the latter may 
plead a counterdemand in an amount equal to or less than the amount 
of the claim of the foreigner, and the court will allow the same. But 
in no instance will the court give affirmative judgment against a for¬ 
eign litigant in any amount. 

Courts derive their powers from the law and not the consent of the parties. * * * 
Courts can not take jurisdiction of matters except as authorized by law. * * * a. 
jurisdiction to hear and determine a complaint made by the subject of another coun» 
try against a citizen of the United States does not confer jurisdiction for a cross action 
in a consular court. So far as set-off is a defense, it may be pleaded. I am of opinion, 
therefore, upon the case submitted that a consular court could not entertain the plea 
of set-off further than the extent of the claim asserted by the Dutch merchant; and, 
secondly, that the consular court could not, under the treaty with Japan and the 
statutes of the United States, render a judgment over against a person of foreign birth 
not a citizen of the United States in Japan. (11 Opinions Attorney-General, 476.) 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 55 

Petition of plaintiff is denied and defendants’ plea of set-off is dis¬ 
missed without prejudice. Plaintiff will pay the costs of this suit. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 
Shanghai, March 6, 1907. 

United States court for China. 

M. S. Friede v. Getz Brothers & Co., a corjwration.m 

JUDGMENT. 

It appears from the evidence in this case that Getz Brothers & Co.) 
a California corporation, defendant herein, entered into two con¬ 
tracts of agency with M. S. Friede, plaintiff herein, who is a citizen of 
the United States, as follows: 

On the 4th day of October, 1905, said defendant agreed to appoint 
said plaintiff its sole agent in the territory known as Manchuria and 
Siberia for the sale of Pabst beer, St. Charles evaporated cream, pack¬ 
ing-house products manufactured by Armour & Co., and other goods 
for which the defendant was agent, the profits from the sale of which 
were to be divided equally between plaintiff and defendant. Plain¬ 
tiff agreed to sell annually under this contract not less than 15,000 
barrels of Pabst beer, 15,000 cases of St. Charles evaporated cream, 
and an amount of Armour & Co.’s products not less than the amount 
of similar products sold by Swift & Co. Defendant agreed to fur¬ 
nish at his own expense a man to be located in Manchuria and Siberia 
who should act in the interests of the business covered by the con¬ 
tract, and also agreed not to sell during the life of the contract any 
lines of goods which might compete with those lines of goods men¬ 
tioned therein. Plaintiff agreed to devote his time exclusively to the 
sale of the brands of goods covered by the contract and to render a 
prompt account of all sales made. (Exhibit I, p. 69.) At the end of 
the first year this contract was canceled. 

Thereafter, on the 21st day of December, 1905, plaintiff and defend¬ 
ant entered into a contract whereby the plaintiff agreed to sell certain 
consignments of goods for defendant, said goods to be sold for account 
of defendant, and plaintiff to be paid a commission of 5 per cent 
on all sales made. (Exhibit C, p. 73.) 

This controversy arises out of the alleged violation of the terms of 
the foregoing contracts. Plaintiff in his petition alleged that he car¬ 
ried out all the provisions of his agreement with the defendant, but 
that defendant in violation of his agreement entered into competition 
with him and damaged him in the sum of 25,000 taels; that he has 
made a proper accounting to defendant, but that defendant has 
refused to render him an account or make a settlement with him. 
Plaintiff also claims to have advanced the defendant 2,700 taels, 
which is alleged to be yet due him. 

Defendant’s answer traverses the allegations of plaintiff’s petition, 
and sets up two counterclaims, the first growing out of a breach by 
the plaintiff of the contract of the 4th day of October, 1905, and the 
second growing out of plaintiff’s breach of the contract of the 21st 
day of December, 1905. 


56 CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

Defendant further alleges that under said contract of the 4th day of 
October, ,1905, he delivered to plaintiff a complete line of samples of 
the goods to be sold, valued at $200 gold, which the plaintiff failed 
to return, but sold and appropriated the proceeds of same to his 
own use; that plaintiff failed to carry out the provisions of said 
contract by having failed to sell during the first year thereof 15,000 
barrels of Pabst beer, 15,000 cases of St. Charles evaporated cream, 
and the stipulated amount of the other products covered by the agree¬ 
ment; that the defendant by virtue of such failure was damaged 
in the suhi of $17,475.50 gold by loss of profits and value of samples; 
that the brands of Pabst beer and St. Charles evaporated cream 
have been damaged by the failure of plaintiff to bring them properly 
before the trade and that to rehabilitate the business of Pabst beer 
and St. Charles evaporated cream will necessitate the expenditure 
of $7,500 gold and $2,500 gold respectively. Under his first coun¬ 
terclaim the defendant prayed for judgment in the sum of $27,475.50 
gold. 

For a further counterclaim the defendant sets out the contract of 
the 21st day of December, 1905, above mentioned, and alleges that 
pursuant to the terms thereof the defendant delivered at Vladivos¬ 
tok a large amount of goods and merchandise, a part of which plain¬ 
tiff sold and accounted for on the 18th day of January, 1906, but, 
after said accounting, there remained in possession of plaintiff cer¬ 
tain goods which were unsold; that later defendant demanded 
from plaintiff the redelivery of said unsold goods, and that on or 
about the 9th day of April, 1906, plaintiff shipped to Shanghai a 
part of said goods, consisting of 4,800 cases of Armour’s beef, 1,852 
cases of Armour’s beef, and 260 cases of blue mottled soap; that 
plaintiff failed to notify defendant that said goods were shipped, 
wrongfully shipped them in his own name, and wrongfully hypothe¬ 
cated to the Kusso-Chinese Bank the bills of lading covering the ship¬ 
ment of said goods; that in consequence of said wrongful shipment 
and hypothecation, the defendant was damaged in the sum of 
$2,249.60 gold, which sum was paid in compliance with the award 
of the honorable Sir Havilland de Sausmarez, chief justice of His 
Britannic Majesty’s supreme court for China and Korea, acting 
as sole arbitrator; that besides the goods so shipped, other goods 
unaccounted for remained in the possession of the plaintiff; that the 
value of the goods other than the Pabst beer unaccounted for is 
$7,027.74 gold; that the damage which resulted to defendant from 
the failure of plaintiff to account for 546 barrels of Pabst beer, which 
were delivered under said contract is $9,244.66 gold, which said 
amount was paid in compliance with the above-mentioned arbitra¬ 
tor’s award, and that by reason of the default and failure of plaintiff 
to fulfill his contract, and as a result of the wrongful shipment of said 
goods to Shanghai, the defendant has been put to the necessity of 
paying for legal service the sum of $1,140 gold and that by reason of 
the wrongful shipment of said goods to Shanghai the defendant has 
been required to pay $351.88 gold for storage of said goods. 

Upon the second counterclaim the defendant prayed judgment in 
the sum of $20,014.08 gold. 

Plaintiff was represented at the trial by Mr. N. C. Home. Plain¬ 
tiff himself did not appear, but left China before the case came on for 
trial. His attorney appeared and asked for a continuance by reason 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 57 

of his absence. After hearing argument upon said motion for con¬ 
tinuance, the court ruled that, in view of the fact that defendant's 
agent had come to Shanghai under great expense for the sole purpose 
of attending the trial of this case and giving testimony therein, the 
testimony of the defendant would be taken at this time, and that a 
commission for taking the testimony of the plaintiff, who was then 
in the United States, would issue upon the completion of the taking 
of defendant’s testimony. A transcript was made of same, and 
copies furnished to the counsel for both plaintiff and defendant. A 
copy of the said transcript also accompanied the commission to take 
depositions in the United States. The plaintiff was notified by cable 
of the foregoing facts, which notification duly reached plaintiff as 
shown by later cable received by the court from him. Plaintiff did 
not avail himself of the opportunity to give his testimony in this 
case before the commissioner appointed by the court, but left the 
United States for Europe before the date set for the taking of his 
testimony. The court stated at the trial that it had in person 
informed Friede in Yokohama in July, 1906, that his case against 
Getz Brothers would be heard in the following November or Decem¬ 
ber. It thus appears that Friede left the Orient, knowing when his 
case would be called for trial and left the United States on the 4th day 
of February, 1907, after having been duly informed a month in 
advance that a commission had been issued to enable him to give 
his testimony in the case in St. Louis, Mo., on the 1st day of March, 
1907. 

The evidence in this case is limited to the testimony of witnesses, 
L. R. Tuttle, J. H. Monson, and H. Dannenberg, and the documents 
introduced as exhibits. The testimony shows that defendant com¬ 
plied with the terms of the contract of the 4th day of October, 1905; 
that it furnished plaintiff with a line of samples valued at $200 gold, 
which the plaintiff failed to return and account for (see record, pp. 
14 and 15); that plaintiff neglected the business and failed to con- 
municate with defendant in regard to it and answer inquiries made 
by defendant. 

The testimony further shows that under the terms of the contract 
the plaintiff agreed to sell annually 15,000 barrels of Pabst beer and 
15,000 cases of St. Charles evaporated cream, but that, instead of 
selling the stipulated amounts, he only placed an order for 2,800 cases 
of St. Charles evaporated cream, and no order for Pabst beer, but that 
he failed to account for 800 cases St. Charles evaporated cream, and 
that defendant sold for Mr. Friede’s account 250 barrels of Pabst 
beer. The testimony also shows that plaintiff did not send any 
orders for Armour’s beef and other lines of goods covered by said 
contract of the 4th day of October, 1905, and that it was agreed 
that Pabst beer was to have been sold at a profit of $2 gold per bar¬ 
rel, and that the amount of profit on St. Charles evaporated cream 
was to have been 45^ cents per case. The profit on 14,750 barrels 
of Pabst beer at $2 gold per barrel would have been $29,500 gold; 
the half profit on 250 barrels sold was $250 gold, which amount 
deducted from the half-profit on the 14,750 barrels of Pabst beer, 
which were unsold, would leave an amount due to defendant of $14,500 
gold. Plaintiff sold 2,800 cases St. Charles evaporated cream, whilst 
his contract called for 15,000 cases, leaving a difference between the 
amount actually ordered and that called for by the contract of 12,200 


58 CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

cases. Had the sales of St. Charles evaporated cream according to 
the contract been made there would have been a profit to defendant 
of $2,775.50 gold. Mr. Tuttle testified that in order to rehabilitate 
the business on Pabst beer and St. Charles evaporated cream in Man¬ 
churia it would necessitate the expenditure by defendant of $10,000 
gold. 

The evidence in the second counterclaim is as follows: 

A statement of the bill covering the goods delivered to plaintiff 
under the second contract is found in Exhibit C. Exhibit I shows 
the value of said goods. A part of those goods were sold and ac¬ 
counted for by plaintiff and the profits divided. (See record, p. 25.) 
A part of these goods, however, plaintiff failed to account for, the 
value of which, exclusive of the 546 barrels of Pabst beer which 
defendant had to pay for under the arbitration award and exclusive 
of the beef and soap which were shipped to Shanghai, was $7,027.74 
gold. (See record, pp. 26, 27, and Exhibit I.) A part of the goods 
covered by the contract of the 21st day of December, 1905, were 
shipped to Shanghai. 

Upon the 29th day of March, 1906, the defendant sent to the plain¬ 
tiff a cable instructing him to ship the unsold goods to Shanghai. 
(See Exhibit I.) Thereafter the plaintiff shipped to Shanghai 4,800 
cases of Armour’s beef, 1,852 cases of Armour’s beef, and 260 cases 
of blue mottled soap. Instead, however, of consigning these goods 
to the defendant, the plaintiff wrongfully consigned the goods to 
himself at Shanghai, and thereafter hypothecated the bills of lading 
of said shipment to the Kusso-Chinese Bank. On or about the 9th 
day of April the said shipment arrived in Shanghai, but no advice of 
same was received by the defendant; in fact, no communication 
whatever on the subject was sent to the defendant by Mr. Friede. It 
was some days later, according to the evidence of Mr. Tuttle, that the 
defendant learned that the cargo was in Shanghai. The carriers were 
the Chinese Eastern Railway Company. Application was made to 
them for delivery, and they demanded a bond from the defendant 
in lieu of the bills of lading. Later the Russo-Chinese Bank informed 
the defendant that it had a claim of $11,932.45 gold, plus the charges, 
against this particular shipment, and held the bills of lading therefor. 
This was the first intimation the defendant had received of any claim 
against the cargo. Upon inquiry it was learned from the bank that 
the bills of lading had been indorsed to them by M. S. Friede and 
that Friede had instructed the branch of the bank at Vladivostok to 
collect this amount and place it to his credit. This is confirmed by 
the testimony of Mr. Munson. (See record, p. 62.) 

As a result of these transactions on the part of Friede, the defend¬ 
ant was sued by Mr. Bertram, who was the owner of 1,852 cases of 
the above beef, which had been turned over to Getz Brothers to sell 
for him, as were the 546 barrels of Pabst beer. A controversy arose 
between the parties interested, and it was agreed that the dispute 
arising out of the whole transaction should be arbitrated. Sir Havil- 
land de Sausmarez, presiding judge of His Britannic Majesty’s 
supreme court, was chosen sole arbitrator. Under the award of the 
arbitrator (see Exhibit P), the defendant was required to pay a sum 
of $2,249.60 gold to Mr. Bertram. This loss flowed directly from the 
wrongful shipment to Shanghai by plaintiff of the goods above men¬ 
tioned, and in addition to this amount the defendant was required to 


CHARGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


59 


pay under the said arbitration for the 546 barrels of Pabst beer 
which were consigned to the plaintiff under the contract of the 21st 
day of December, 1905, and which the plaintiff failed to return or 
account for the sum of $9,244.86 gold. 

The defendant was required by reason of the default and failure 
of the plaintiff to fulfill his contract of the 21st day of December, 
1905, and by the wrongful shipment of the goods to Shanghai, and 
by reason of the wrongful hypothecation of the said bills of lading 
to defend suits which were instituted against him, and to pay for 
legal services in connection therewith, the sum of $1,140 gold (see 
Exhibits M and O), and by reason of the wrongful shipment of the 
goods from Vladivostok to Shanghai and the failure to notify defend¬ 
ant of said shipment defendant was required to pay the sum of 
$351.88 gold for storage of the said goods at Shanghai, which said 
storage would not have been incurred had the goods been shipped 
in accordance with defendant’s orders and the defendant properly 
notified of the same. (See Exhibit M.) The defendant, therefore, 
by reason of the failure of Mr. Friede to comply with the conditions 
of the contract of the 21st day of December, 1905, and by reason of 
his wrongful actions thereunder has been damaged as follows: 


For goods consigned which have not been accounted for, with the excep- Gold. 

tion of 546 barrels of Pabst beer....'.. $7,027. 74 

By failure of the plaintiff to account for the delivery of Pabst beer. 9, 244.86 

By reason of the wrongful shipment and hypothecation of 1.852 cases of 

Armour’s beef... 2, 249. 60 

By reason of the legal actions which arose out of Friede’s dereliction. 1,140.00 

By reason of storage on said goods wrongfully shipped and failure to notify 
defendant of said shipment. 351. 88 


Making a total of. 20, 014.08 

The amount of the two counter-claims aggregates $47,489.58 gold. 

Tuttle testified that defendant stood ready at all times to perform 
his obligations under the contract, and that he did not enter into 
competition with plaintiff in Manchuria or Siberia. This testimony 
stands uncontradicted. 

In view of the foregoing evidence, the petition of plaintiff must 
be denied, and the claim of defendant, less $10,000 gold, the amount 
claimed for the rehabilitation of the brands of Pabst beer and St. 
Charles evaporated cream, which is merely speculative, must be 
admitted. Judgment is therefore rendered in favor of Getz Brothers 
& Co., defendant herein, in the sum of $37,489.58 gold and the costs 
in this case. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, China, July 6,1907. 


United States court for China. 


Chen Wong Taiv. A. W. George-Co. 


judgment. 

The evidence in this case established the following facts: On the 
9th day of July, 1905, E. de Bavier, on behalf of the Shanghai Tannery 
Company, entered into a contract with A. W. George and Francis 









60 CHAEGES AGAINST JUDGE LEBBEUS B. WILFLEY. 

Stanley, partners, doing business under the firm name of A. W. 
George & Co., the defendants herein, for the construction of certain 
buildings on a piece of land located on Soochow Creek, in the city of 
Shanghai, China. The contract provided that the buildings should 
be finished and ready for occupancy within four months from the date 
defendants were allowed to begin work by Bavier, and that defendants 
should be paid therefor the sum of 23,200 Shanghai taels; said sum to 
be paid in installments. The contract provided that the first of these 
installments should be 7,200 taels, which should be paid ^^when the 
foundations of all the buildings are completed and walls thereof are 
one foot above the ground.’’ (See defendants’ Exhibit A.) 

On the 8th day of July, 1906, said defendants entered into a con¬ 
tract with plaintiff for the construction of the buildings referred to in 
the above-mentioned contract between Bavier and said defendants, 
whereby plaintiff agreed to construct said buildings in accordance 
with the plans and specifications for the sum of 21,000 taels. It was 
further agreed that the buildings should be completed by the 15th day 
of December, 1906. The contract also provided that the plaintiff 
should be permitted to commence work on or before the 15th day of 
July, 1906, and that he should be paid in installments, the first and 
second of which were as follows: 

First. Cement and wall 1 foot above floor, 5,000'taels. 

Second. First floor, 5,000 taels. 

This contract was also signed by one W. H. Tseen, as guarantor for 
Chen Wong Tai. (See defendants’ Exhibit E.) 

Pursuant to this agreement plaintiff undertook the construction of 
said buildings, beginning the work thereon about the middle of July, 
1906, and prosecuted the same until about the 14th day of September 
of the same year, when, according to his statement, he was forced to 
cease operations by failure of defendants to make payments in 
accordance with the terms of the agreement. On or about the 18th 
day of August, 1906, plaintiff made demand upon defendants for the 
first instaflment called for by the contract. On the 21st day of 
August defendants paid W. H. Tseen, without authority from plaintiff, 
3,000 taels. (See defendants’ Exhibit G.) 

Prior to the 18th day of August, 1906, defendants had been paid 
by Bavier the first installment of 7,200 taels in accordance with the 
terms of their agreement. Of the 3,000 taels paid to Tseen, 1,000 
taels were paid to Chen Wong Tai. It appears tnat Tseen absconded 
with the other 2,000 taels and has not been heard of since, notwith¬ 
standing the fact that this court has exhausted all means at its com¬ 
mand to locate him. 

When Chen Wong Tai was forced to cease work on the buildings, 
he left a quantity of building material on the building site, which 
defendants prohibited him from removing. 

Thereafter, on the 3d day of October, 1906, defendants entered 
into a contract with one Chu Kun Kee for the completion of the 
buildings in question, agreeing to pay therefor the sum of 16,500 
taels. Among other things said contract provided as follows: 

That all material such as bricks, wood, cement, concrete, lime, Foochow poles, 
and lumber, are turned over to the new contractor; when all work is completed he 
shall take away all material on the premises, (See defendants’ Exhibit E.) 

Basing his claim on the foregoing facts, the plaintiff brings this 
suit against defendants for the 4,000 taels due on the first installment, 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 61 

and for 8,579 taels representing the value of the work claimed to have 
been done on the second installment, and the value of the material 
which was deposited on the building site which was not used on the 
building and which was retained by the defendants, and for loss of 
profit flowing from defendants’ breach of the contract in the sum of 
1,000 taels. 

It now becomes necessary to examine the evidence in this case for 
the purpose of fixing the responsibility for the breach of the contract 
and of determining the actual value of the material furnished and 
work done by plaintiff pursuant to the terms of his agreement. 
There is no doubt that plaintiff was forced to quit work on the build¬ 
ing by reason of defendants’ failure to pay him according to the terms 
of the agreement. The evidence shows that plaintiff had worked for 
a period of two months on the buildings, and that large amounts of 
material had been furnished by him. Merchants from whom plaintiff 
had purchased material, and plaintiff himself, testified that large 
amounts of material had been delivered and deposited upon the 
building site, part of which had been put into the building, and part 
of which remained unused at the time the plaintiff was forced to 
quit work. The value of this material is variously estimated at from 
9,000 taels to 12,000 taels. 

It is not contended by defendants that more than 3,000 taels was 
ever paid to plaintiff or his representative. The evidence shows 
that of the 3,000 taels paid to Tseen only 1,000 taels ever reached 
Chen Wong Tai. Notwithstanding that these facts were brought 
to the notice of defendants, they failed and refused to make any 
further payments, with the natural result that plaintiff was forced 
to suspend operations. 

That plaintiff had finished the work called for by the contract, 
which entitled him to the first installment of 5,000 taels, is conclu¬ 
sively proved by the letter of defendants’ which was written in 
response to plaintiff’s demand for payment of said installment, and 
which is as follows: 

August 18, 1906. 

Chen Wong Tai. 

Dear Sir: We wrote to let you know that the money for the first installment is 
here ready for you. Please call and receive the same. 

We remain, yours truly, 

(Signed) W. A. George & Co. 

(See defendants’ Exhibit I.) 

Prior to this date the defendants had received from Bavier the 
first installment under their contract with him, which amounted to 
7,200 taels.' (See testimony, p. 48.) The fact that this payment 
was made not only corroborates the proof that the work under the 
fost installment had been completed, but goes to show that plaintiff 
had done more work than was called for under the first installment 
before demand was made for the payment of the 5,000 taels, for the 
reason that Bavier would not have paid defendants 7,200 taels under 
their contract with him unless the work had been finished according 
to the terms of the contract. On this point Mr. Robert J. Carter, 
defendants’ witness, who was agent for Bavier in this transaction, 
testified as follows: 

My instructions from the company were that Messrs. George & Co. could never draw 
one copper cash from us unless they received a note from me stating that the work 
had been completed at such and such a stage. When they got the foundations com- 


62 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


pleted and 5 feet up they were entitled to the first payment. I must say that they 
did get up 5 feet, but they never went any farther for a long time, and I have the date 
when they stopped work. The date when they stopped work was the 14th day of 
September last year. (See testimony, p. 41.) 

This testimony is conclusive upon the point that defendants had 
complied strictly with their contract with Bavier and had performed 
work satisfactory to the latter, which entitled them to their first 
installment of 7,200 taels. The contract with Bavier provided that 
when the foundations of all the buildings were completed and walls 
thereof were 1 foot above the ground the first installment would be 
due. It thus appears that plaintiff had done a sufficient amount of 
work on the building to entitle defendants to collect 7,200 taels, and 
that defendants had in turn only attempted to pay him the sum of 
3,000 taels. Thereafter plaintiff continued work for a period of 
about thirty days, during which time it is fair to assume that sub¬ 
stantial additions were made to the buildings. 

According to the testimony of the plaintiff, almost a sufficient 
amount of work had been done to entitle him to the payment of the 
second installment under the contract. On this point his testimony 
is as follows: 

I had already put sleepers in the upper story. I had done enough for practically 
the second installment. The second installment was due when the building was far 
enough advanced to put up the sleepers, and I had reached that period. There were 
two smaller buildings and one large one. The larger one had to be raised to the height 
of the sleepers in the upper stories. The concrete and foundations were all finished 
for the three buildings, and the larger building had been erected high enough to put 
the sleepers in. I had done enough work for the second installment, but they would 
not pay me. (See testimony, p. 11.) 

This testimony was contradicted by Messrs. Stanley and Carter, 
both of whoni, however, admitted that the concrete and foundations 
for all the buildings were in and that the walls of the main building 
were 5 feet high. 

In view of the foregoing facts, namely, that defendants had 
acknowledged plaintiff's right to the first installment of 5,000 taels, 
that plaintiff had done sufficient work to entitle defendants to receive 
their installment of 7,200 taels from the owner, and that therefore the 
plaintiff had worked on the building for a period of thirty days, and 
in view of plaintiff's testimony, the court feels warranted in holding 
that on the date plaintiff was compelled to quit work he had fur¬ 
nished materials and performed labor on the buildings in question, 
the value of which may fairly and reasonably be estimated at 8,000 
taels. 

On the question of the value of the material left deposited on the 
ground which was not used in the construction of the buildings there 
is much conflict of testimony. Plaintiff introduced a number of 
witnesses who were familiar with the quantity and value of said 
material and who testified with reference to the same with consider¬ 
able certainty. All of these witnesses agreed that the value of said 
material was about 5,000 taels. ' 

Chang Kuei Yuen, plaintiff's foreman, testified that said material 
consisted of broken bricks used for making concrete, lime, red and 
black bricks, Foochow poles, Japanese wood, timber, roofing cement, 
roofing felt, corrugated iron, and a number of carpenters' sheds, all 
of which he valued at 6,510 taels. 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


63 


Plaintiff also produced a number of Chinese merchants, who testified 
that they had furnished large quantities of material to the plaintiff 
for use in the construction of the building in question, large parts of 
which remained on the ground to their personal knowledge after the 
plaintiff had stopped work. 

The defendants’ witness, William James Keeling, a carpenter by 
trade, who was for a time in charge of the premises as watchman, 
testified that he made a list of the material left on the ground, which 
list corresponded in the main with the list furnished by plaintiff’s 
witnesses, except as to quantity. He did not undertake to estimate 
the value of this material. 

Mr. Stanley testified that the value of said material was small. 

The court is of the opinion that the estimate placed upon the value 
of said material by plaintiff’s witnesses is somewhat too liigh and that 
of defendants’ witnesses considerably too low, and believes that value 
of said material should be estimated at 3,000 taels. 

In addition to the foregoing the plaintiff claims damages for loss of 
profit in the sum of 1,000 taels, which, in view of all the circumstances, 
IS not, in the opinion of the court, an unreasonable demand. 

This leaves but one question to be decided, namely, whether the 
payment of the 3,000 taels to Tseen was a legal payment which should 
be credited on plaintiff’s first installment. Tseen was plaintiff’s 
guarantor, and the evidence shows that he had collected a small sum 
from the defendants prior to the date he received the 3,000 taels above 
mentioned. On the other hand, defendants admit that they had 
received no order from the plaintiff, either written or oral, authorizing 
them to take payment of any amount to Tseen. It thus appears that 
the defendants made this payment to Tseen without legal authority, 
and in the absence of proof of the existence of a local custom warrant¬ 
ing such a course it must be held that payment was made at defend¬ 
ants’ risk. Defendants are therefore credited on the first installment 
with the payment of 1,000 taels only, the amount which plaintiff 
actually received. 

In view of the foregoing considerations the court finds: 

1. That plaintiff’s failure to finish the construction of the buildings 
covered by the contract was due solely to defendants’ failure to pay 
the installments as they fell due under the contract. 

2. That the value of the labor performed and the materials which 
entered the buildings is 8,000 taels. 

3. That the value of the unused material plaintiff left on the ground 
which defendants prohibited him from removing, and which defend¬ 
ants afterwards, without right or authority, transferred to Chu Kun 
Kee, is 3,000 taels. 

4. That by reason of defendants’ breach of contract plaintiff has 
been damaged by loss of profit in the sum of 1,000 taels. 

5. That defendants have paid plaintiff the sum of 1,000 taels. 

Judgment is therefore rendered in favor of'the plaintiff in the sum 

of 11,000 taels and for the costs of this suit. 

L. R. WiLFLEY, 

Judge of the United States Court for China. 

Shanghai, July 17, 1907. 


64 


CHAKGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


United States court for China. 

Chu Kun Kee v. A. W. George and F. S. Stanley^ partners, doing busi¬ 
ness as iA. W. George & Co. 

JUDGMENT. 

On the 3d day of October, 1906, plaintiff, Chu Kun Kee, entered 
into a contract with defendants' firm, A. W. George & Co., whereby 
he agreed to complete the erection of certain buildings situated on 
Soochow Creek, in the city of Shanghai, the construction of which had 
been begun by subcontractor Chen Wong Tai during the month of 
July preceding. The contract price was 16,500 taels, which was to be 
paid m installments, the last of which, 5,000 taels, was to be paid after 
the building was completed. Pursuant to the provisions of this con¬ 
tract, plaintiff entered upon the work and completed the building in 
accordance with the terms of the contract on the 9th day of February, 
1907. The buildings were then turned over to defendants who, in 
turn, delivered them to Bavier & Co., who accepted them after a few 
alterations were made, which cost 204.96 taels. 

According to the terms of the agreement between A. W. George & 
Co. and Bavier & Co., the contract price for the construction of the 
building was to be paid in installments, the last of which was 5,000 
taels. This last installment, less 204.96 taels, was paid some days 
prior to the 17th day of April, 1907. On the 18th day of April, 1907, 
plaintiff went to the office of defendants and demanded payment of 
the last installment due him under his contract. Before any money 
was paid defendants handed him a receipt for 5,000 taels, which he 
signed without hesitation. The receipt was drawn by defendant, 
Stanley, on a letter head of A. W. George & Co., and reads as follows: 

Shanghai, April 19, 1907. 

Received from A. W. George & Co. the sum of 5,000 taels, the 
balance due on Shanghai Tannery Company building. 

Received payment, with thanks, less 204.96 taels (two hundred and 
four taels and ninety-six cents). 

(Signed) Chu Kun Kee (Chop). 

(Defendants' Exhibit B.) 

The foregoing facts are undisputed. The dispute which is the basis 
of this suit arose out of the transaction which took place in defendants' 
office in connection with the payment of the last installment after the 
above-mentioned receipt was signed. 

Plaintiff's story is that defendants, after they got possession of the 
signed receipt, paid him, not the 5,000 taels due him under his contract, 
but 3,398.70 taels. Defendants deny this statement and claim that 
the full amount of the fast installment, namely, 5,000 taels, was paid, 
less 204.96 taels. 

It now becomes necessary to examine the testimony adduced at the 
trial and to consider the facts and circumstances surrounding this case 
with a view to ascertaining the truth. 

Plaintiff testifies that he took with him to the office of defendants 
two friends, one of whom was the compradore of M. Marti & Co., 
neither of whom were permitted by defendants to enter the office. He 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


65 


then stated that he entered the office alone and signed the receipt at 
the request of defendants, but that when they paid over the money 
they ‘‘cut” him 1,601.30 taels. He said they explained to him that a 
deduction had been made because Bavier had “cut” them by reason 
of the defects in the building and that they had been put to the neces¬ 
sity of paying lawyers, arbitrators, etc. He stated that he remon¬ 
strated and quarreled with defendants for a period of about two hours 
and was then ordered out of the building, and that a municipal Sikh 
policeman was sent for by George for the purpose of ejecting him if he 
refused to go. He further stated that he went immediately from the 
office of A. W. George & Co. to the office of Bavier & Co., where he met 
Mr. L. D. Lemaire, the secretary of the company, and Wa Ka Lee, a 
clerk in the office of the company, and told them of the treatment he . 
had received at the hands of the defendants. He also testified that 
the money was not paid in a lump sum, but in native compradore 
orders and cash, the total amount of which was 3,398.70 taels. (Plain¬ 
tiffs Exhibit B.) 

Plaintiff’s story is corroborated by the testimony of his own friends 
and of the employees of Bavier & Co. and by the testimony of the as¬ 
sistant cashier of the Russo-Chinese Bank. The two friends who ac¬ 
companied him to defendants’ office testified that they were not per¬ 
mitted to enter the office, but remained outside the hall and that, while 
waiting for plaintiff, they heard a commotion on the inside consisting 
of loud talking and quarreling, which kept up for a period of nearly 
two hours, at the conclusion of which George ordered a policeman for 
the purpose of ejecting the plaintiff from the room. They also testified 
that as soon as plaintiff left the office he told them that the quarreling 
was occasioned by the fact that George “cut” him in his last settle¬ 
ment in the sum of about 1,700 taels. 

Mr. L. Dire, secretary of Bavier & C. Lemao., and Wa Ka Lee, 
a clerk in the office of the same company, testified that on the 18th 
day of April, 1907, plaintiff came to the office of the company and 
complained that he had been “cut” by defendants in his final settle¬ 
ment with them about 1,700 taels, and gave them an account of what 
had transpired in defendants’ office when the settlement was made. 
Mr. Lemaire further testified that this was not the ffi'st time that 
plaintiff had come to him and made complaint about the manner 
in which defendants did business. He stated that plaintiff had often 
complained that he had difficulty in getting defendants to make 
payment according to the terms of the contract. 

Wa Ka Lee testified that at the time plaintiff made this complaint 
to him in the office of Bavier & Co. he, Wa Ka Lee, wrote out the 
amount which plaintiff stated defendants had paid him. (Plaintiff’s 
Exhibit B.) The slip on which the memorandum was made was 
identified by witness and by Mr. Lemaire at the trial. 
r^Mr. M. E. Bastien, assistant cashier of the Russo-Chinese Bank, 
testified that the Bavier check to George &. Co. for 5,795 taels was 
cashed on the 17th day of April, 1907, and that George obtained pay¬ 
ment in three compradore orders, one for 1,000 taels, one for 1,200 
taels, one for 595.04 taels, and the remaining 2,000 taels in bank 
notes. 

Defendants’ story of the transaction consisted of a simple denial 
of the facts alleged by plaintiff, supplemented by the claim that 

29865—08-5 



66 


OHAKGES AGAINST JUDGE LEBBEUS K. WILFLEY. 


the full amount of the last installment of the contract was paid, less 
204.96 taels, the amount deducted by Bavier & Co. on account of the 
defects in the building. On cross-examination defendant George 
was asked where he got the funds out of which he made the payment 
of the last installment to plaintiff. His answer was that he did not 
know, but that he was certain it did not come from the proceeds of 
the check from Bavier & Co., because that check was not cashed until 
the 19th day of April. When he had heard the testimony of Mr. 
Bastien, assistant cashier of the Russo-Chinese Bank, as to the exact 
date on which the Bavier check was cashed by his firm, he went on 
the witness stand and testified that he had made a mistake; that the 
check was cashed on the 17th day of April, 1907, and that the plain- 
’tiff was paid from the proceeds of same. When asked why he did 
not indorse the Bavier check over to plaintiff, he was at first unable to 
make any explanation. Subsequently he undertook to account for 
this transaction by saying that he wanted to get some cash for the 
purpose of protecting his friend Heath, from whom plaintiff had pur¬ 
chased material, and who did not trust plaintiff, the idea being that 
Heath should be paid in cash at the time of the settlement between 
defendants and plaintiff. This testimony, however, was not corrob¬ 
orated; on the contrary, the evidence showed that Heath was not 
paid in cash, but with one of the native compradore orders which 
plaintiff had received from defendants. Defendant George was 
unable to give any satisfactory reason for the unusual manner in 
which the final payment to plaintiff was made. 

Defendant Stanley testified that the financial end of the firm was 
managed exclusively by his partner, George. 

Defendants’ manner on the stand and method of doing business 
impressed the court quite as much as their testimony. They both 
testified that they had been in partnership for a period of one year 
and three months; that prior to that time defendant Stanley was a 
seaman and a wharfinger, and that until within the last few years the 
defendant George was a carpenter and foreman. George, though 
claiming to have been an architect for thirty-five years, had never 
practiced his profession until within the last few years, and then only 
in Shanghai. Both defendants testified that the firm had no capital 
stock to begin with, that it is now without capital, and that it had 
never kept books of any description or character and had never 
had a bank account. They stated they kept no records whatever of 
their business transactions, and that whenever money was paid into 
the firm it was divided between them immediately. The testimony 
of the defendant George was incoherent and contradictory and has 
manner on the stand embarrassed and confused. 

On the other hand, plaintiff’s story is straightforward and reason¬ 
able, and is supported by the testimony of creditable witnesses and 
by the probabilities of the case. It is a well-known fact that Chinese 
merchants and business men are usually honest and trustworthy and 
faithful in the performance of their obligations under their contracts. 
It is also well known that they are disposed to be reasonable and 
conciliatory in all their business transactions, especially with for¬ 
eigners, and are not given to quarreling except under circumstances 
of great provocation. This being so, it is highly improbable that 
plaintiff would have raised an outcry and gone to the expense and 
trouble of bringing this suit had there been no foundation for his 
claim. 


CHAEGES AGAINST JUDGE LEBBEUS K. WILFLEY. 67 

On the whole, plaintiff's general appearance and the nature and 
character of the testimony produced by himself and on his behalf 
during the trial impressed the court that the claim is a bona fide one, 
and that plaintiff’s statements made in court in this case are probably 
true. On the other hand, the court regrets to state that defendants' 
^testimony and general conduct in the trial of this case and their 
methods of doing business as disclosed by their own statements are 
not such as to inspire the court with confidence in their integrity. 
In view of these facts, the testimony of defendants in this case must 
be rejected, and that of plaintiff and his witnesses accepted as true. 

The court is of the opinion that in their final settlement with 
plaintiff defendants wrongfully and fraudulently withheld from him 
the sum of 1,601.30 taels due him under his contract. 

• Judgment is therefore given in favor of the plaintiff in the sum of 
1,601.30 taels, and for the costs in this case. 

L. R. WiLFLEY, 

Judge of the United States Court for (China. 

Shanghai, July 17, 1907. 

In the United States Court for China at Shanghai, August, 1907. 

F. M. Broolcs, 'plaintiff, v. P. W. Ir'vine, 0. W. Mead, and The Inter¬ 
national Banicing Corporation, defendants. 

JUDGMENT. 

This case came on for trial on the 8th day of August, 1907. The 
testimony produced at the trial established the following facts: 
On or about the 29th day of July, 1905, defendant, C. W. Mead, 
borrowed from plaintiff, F. M. Brooks, the sum of $2,750 Mexican, 
and executed a promissory note to said plaintiff which recited that 
the same was for value received and that the sum would be returned 
within sixty days. The note bears date July 29, 1905. (Plaintiff's 
Exhibit A.) The amount of the note was not paid within the sixty 
days specified therein. On October 31, 1906, said defendant, Mead, 
gave an order on the International Banking Corporation at Shanghai 
in which he directed said banking corporation to ^^pay to the order 
of Francis M. Brooks the sum of $3,025 as soon as the money you 
have of mine is released from the Standard Oil Company bond." 
(Plaintiff's Exhibit C.) Plaintiff testified that he received this order 
in due course, and immediately upon the receipt of same he presented 
it to said International Banking Corporation at Shanghai. On or 
about the 31st day of December, 1906, the manager of said banking 
corporation informed plaintiff that the money referred to in the 
order of the defendant. Mead, was not available. (Defendant's 
Exhibit A.) It appears that the International Banking Corporation 
had become surety for Mead on a certain bond which the latter had 
executed to the Standard Oil Company of New York, and in order 
to protect said banking corporation against any loss which might 
result by reason of this transaction Mead had agreed that said bank 
should hold a certain fund which he had deposited with said bank. 
The testimony showed that at the date of filing this suit the Standard 
Oil Company bond had been canceled and the claim of said Inter¬ 
national Banking Corporation to the special fund above referred to 


68 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


relinquished. The testimony also showed that upon the application 
of defendant, Irvine, an alleged creditor of Mead, the United States 
court for China issued an attachment against the funds of Mead in 
the hands of said International Banking Corporation, and as a result 
thereof all of the moneys which Mead had on deposit in said bank 
were transferred to the account of the marshal of the United States 
court for China. • 

In view of the foregoing facts, namely, that said C. W. Mead was 
indebted to the plaintiff in the amount claimed in the petition and 
that he had given an order to the plaintiff on the International 
Banking Corporation for the payment of the same out of a special 
fund belonging to said Mead held by said banking corporation, the 
court finds that said order created an equitable lien upon said special 
fund. 

It is therefore ordered— 

First. That the attachment issued by the court upon the applica¬ 
tion of P. W. Irvine be dismissed. 

Second. That the marshal of this court transfer said funds which 
have been deposited in his name as marshal of said court as a result 
of the above-mentioned attachment to the International Banking 
Corporation; and 

Third. That said International Banking Corporation pay to plaintiff 
the sum of $3,025 Mexican. 

It is further ordered that defendant, P. W. Irvine, pay the costs 
of the suit. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, August 16, 1907, 

In the United States Court for China at Shanghai, August, 1907. 

Albert TT. Cunningham, administrator of the estate of Henry H. Cun¬ 
ningham, plaintiff, v. James Linn Rodgers, consul-general of the 
United States at Shanghai, China, defendant. 

JUDGMENT OF THE COURT 
sustaining the plea in abatement, and holding that— 

China, in so far as the administration of estates of Americans decedent therein is con¬ 
cerned, is a separate, distinct, and complete jurisdiction, similar to that of one of 
the unorganized Territories of the United States; and that 
It is a well-settled principle of American law that no suit can be maintained by an 
administrator or executor of an estate appointed by the courts of one jurisdiction, 
in his capacity as such, except within the limits of the jurisdiction from which he 
derives his authority. 

The question raised by the plea in abatement filed herein is whether 
an administrator appointed in the State of Maine can, in his capacity 
as such, prosecute a suit in the extraterritorial jurisdiction of China. 

The pleadings in this case disclose the following facts: On the 10th 
day of June, 1905, Henry H. Cunningham, an American citizen, 
died at Shanghai, China, leaving a will in which Edward H. Dun¬ 
ning was named as executor. On June 26, 1905, Edward H. Dunning 
presented said will to the United States consular court at Shanghm 
for probate. Consul-General James Linn Rodgers, sitting as judge, 
admitted the will to probate and confirmed said Edward H. Dunning 


CHAKGES AGAINST JUDGE LEBBEUS K. WILFLEY. 


69 


as executor. The estate was then administered by said executor 
under the direction of said consular court, in accordance with the 
provisions of the last will and testament of the testator. On the 
17th day of May, 1907, Albert W. Cunningham, administrator of the 
estate of Henry H. Cunningham for the State of Maine, filed suit 
against James Linn Rodgers, consul-general of the United States at 
Shanghai, China, charging him with negligence and misconduct in 
office in this, that said James Linn Rodgers administered the estate 
of said Henry H. Cunningham in his judicial capacity, and not in his 
capacity as consul-general, in accordance with the provisions of sec¬ 
tions 1709, 1710, and 1711 of the Revised Statutes of the United 
States, and asked for a judgment against said James Linn Rodgers 
in the sum of $58,165.85. 

In abatement of this suit defendant files a plea in which he contends 
that said plaintiff, Albert W. Cunningham, being the administrator 
of the estate of Henry H. Cunningham in the State of Maine only, 
is without right or authority in his capacity as such administrator 
to prosecute a suit of any character in the extraterritorial jurisdiction 
of China. 

It is manifest from the facts recited in the petition that Consul- 
General Rodgers entertained the view that he, as judge of the United 
States consular court sitting in Shanghai, had jurisdiction under the 
common law to probate wills and administer the estates of Americans 
decedent in China, and that he was of the opinion that Henry H. 
Cunningham was a citizen of the United States domiciled in China. 
He therefore took jurisdiction, admitted the will to probate, and 
directed the administration of. the same in accordance with the law 
in force in China, which is the common law. 

This court has held (iii re probate of will of John P. Roberts, 
May 15, 1907) that the United States court for China has jurisdiction 
to probate wills and administer estates of Americans decedent in 
China in accordance with the provisions of the common law, and that 
prior to the inauguration of this court the American consular courts 
in China were clothed with the same jurisdiction. This court also 
held (In re probate of will of Young John Allen, August 16, 1907) 
that an American citizen may be domiciled in China. 

The significance of the foregoing decisions is that the court holds the 
view that under the treaties of extraterritoriality in force between 
the United States and China and the acts of Congress passed pursuant 
thereto, and for the purpose of carrying the same into full force and 
effect, China, in so far as the administration of the estates of Americans 
decedent therein is concerned, is a separate, distinct, and complete 
jurisdiction, similar to that of an unorganized Territory belonging to 
the United States. 

In the United States the law on the question raised by the defend¬ 
ant’s plea in abatement is clear. The authorities all hold that the 
right of an administrator of an estate does not go beyond the limits 
of the State in which he is appointed. In the case of Johnson v. 
Powers (139 U. S., 157), the court ruled as follows: 

The plaintiff certainly can not maintain this bill as administrator of Stewart, even 
if the bill can be construed as framed in that aspect, because he admits that he has 
never taken out letters of administration in New York, and the letters of administra¬ 
tion granted to him in Michigan confer no power beyond the limits of that State, and 
can not authorize him to maintain any suit in the courts, either State or national, held 
in any other State. 


70 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


In Noonan v. Bradley the Supreme Court of the United States used 
the following language: 

The first plea puts in issue the representative character of the plaintiff in the State 
of Wisconsin. It denies that, as to the cause of action stated in the declaration, he is 
or ever has been administrator of the effects of the deceased, and thus raises the ques¬ 
tion whether an administrator, appointed in one State, can, by virtue of such appoint¬ 
ment, maintain an action in another State to enforce an obligation due his intestate. 
And upon this subject the law is well settled. All the cases on the subject are in one 
way. In the absence of any statute giving effect to the foreign appointment, all the 
authorities deny any efficacy to the appointment outside of the territorial jurisdiction 
of the State within which it was granted. All hold that in the absence of such a statute 
no suit can be maintained by an administrator in his official capacity, except within 
the limits of the State from which he derives his authority. If he desires to prosecute 
a suit in another State, he must first obtain a grant of administration therein in ac¬ 
cordance with its laws. (9 Wall., 399.) 

In view, therefore, first, of the holding of this court that the ex¬ 
traterritorial jurisdiction of China is separate, distinct, and complete, 
in which Americans may become domiciled and in which the estates 
of Americans may be administered by duly constituted courts in ac¬ 
cordance with the provisions of the common law; and in view, second, 
of the above-mentioned decisions of the United States courts that 
in the absence of statutes giving effect to a foreign appointment no 
suit can be maintained by an administrator or executor in his official 
capacity except within the limits of the State from which he derives 
his authority, we hold that Albert W. Cunningham, as administrator 
of the estate of Henry H. Cunningham, appointed by the courts of the 
State of Maine, is without authority to prosecute this suit. 

The plea in abatement is sustained. 

(Signed) L. R. Wilpley, 

Judge of the United States Court for China. 

Shanghai, August 19, 1907. 


In the United States court for China, at Shanghai, August, 1907. 

Re George F. Curtis and H. A. C. Emery, respondents for contempt of 

court. 

judgment. 

Respondent, H. A. C. Emery, is here charged with contempt of 
court in this, that he disregarded and disobeyed an order of tliis 
court directing him to appear before it and give an account of his 
administration of his father’s estate, of which he was executor. 

Respondent, George F. Curtis, is here charged with contempt of 
court in this, that after having knowledge of the rule of the court 
relating to the admission of attorneys to its bar, and after failing and 
refusing to comply with the requirements of said rule, though given 
opportunity so to do, he, in violation of said rule, appeared in court 
as counsel for respondent Emery in the matter of the settlement of 
his father’s estate. 

The record in this case discloses the following facts: On the 24th 
day of July, 1907, this court issued a citation to respondent, H. A. C. 
Emery, a resident of Chefoo, directing him to appear before this 
court on Monday, the 12th day of August, 1907, for the purpose of 
producing all of the documents and other evidence requisite for show- 


CHAEGES AGAINST JUDGE LEBBEUS K. WILELEY. 71 

ing and proving his acts as executor of the will of his father, David A. 
Emery, and for the purpose of showing the assets and liabilities of 
said estate, and for giving such other information as might be neces- 
sary for completely reporting his administration of said estate. The 
citation was served by Consul-General Fowler upon said Emery in due 
course, whereupon said Emery came to Shanghai, arriving here on the 
afternoon of August 12. On August 16 respondent Curtis undertook 
to appear in this court for said Emery and the court refused to hear 
him because he was not a member of the bar of the court, never hav¬ 
ing complied with the rule of the court relating to the admission of 
attorneys to the bar. On the 21st day of August the court issued a 
citation to said Emery, which, after showing that he had been cited to 
appear before the court on the 12th day of August and having failed 
and neglected to appear in accordance with the citation and having 
failed to furnish the court with any good reason for so doing, directed 
him to appear on the following day, August 22, to show cause, if any 
he had, why he should not be punished for contempt. 

The record also shows that respondent George F. Curtis appeared 
in court on August 21, and again undertook to represent Mr. Emery. 
On August 22 respondent Emery appeared in court and gave his 
testimony in response to the above-mentioned citation, at the con¬ 
clusion of which the court directed the clerk to issue a citation to 
respondent Curtis requiring him to appear on the following morning 
at 10 o’clock to show cause why he should not be punished for con¬ 
tempt of court by reason of his having attempted to appear in court 
in the capacity of an attorney in violation of the rule and order of 
court relating to the admission of lawyers to its bar. Respondent 
Curtis, who was in court, immediately rose and stated that he had 
been present in court and heard respondent Emery’s testimony, and 
that he was ready to appear and explain his conduct in connection 
with the case, and waived service of citation. He was then sworn 
and made a full statement in regard to his conduct in this matter. 

The evidence of Mr. Emery shows that on the third day after his 
arrival in Shanghai he employed Mr. Curtis to represent him as 
counsel in the matter of making a full settlement of his father’s estate. 
He testified that he did not know that Mr. Curtis was not a member 
of the bar of this court, although he had been apprised of the fact that 
Mr. Curtis had had some trouble with the court. He testified further 
that Mr. Curtis did not inform him of the action of the court in refus¬ 
ing to let him appear as counsel and that he did not see an account of 
the same in the Shanghai daily newspapers. He stated further that 
he had no knowledge of this fact until he was cited to appear to show 
cause why he should not be punished for contempt five days there¬ 
after. 

Mr. Curtis testified that he informed Mr. Emery at the outset that 
he was not a member of the bar, and that he also informed him of the 
fact that the court refused to permit him to appear in his behalf 
immediately after the event happened. He stated in one part of his 
testimony that he appeared for the purpose of aiding Mr. Emery in 
every way he could in the matter as attorney in fact (see record, 
pp. 7 and 9), and in another part of his testimony he stated that it 
was his purpose to use this opportunity to test the legality of the rule 
of court relating to the admission of lawyers to its bar. On this point 
he testified as follows: ‘‘As I understand the rule of court, I could 
not test the rule of this court to question my right to appear as counsel 


72 CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

for Mr. Emery unless there was some overruling of my right to be 
here.’’ (See record, p. 9). This is conclusive on the proposition that 
Mr. Curtis intended to appear in behalf of Mr. Emery as attorney at 
law and not as attorney in fact. He then went on to show that Mr. 
Emery had been very ill since he had been in Shanghai, and for this 
reason he had not appeared in court in obedience to the citation. On 
the other hand, Mr. Emery gave the court to understand that the 
reason he did not obey the citation was that he thought he was repre¬ 
sented in court by an attorney. 

After a careful examination of all the evidence in this case, the court 
is unable to accept as true the whole of the testimony of either of these 
gentlemen. In the first place, it is altogether improbable that Mr. 
Emery would have permitted Mr. Curtis to appear in his behalf as 
counsel, if he had known positively that Mr. Curtis was not a member 
of the bar of the court, and had realized that by so doing he would 
thereby violate a rule of the court. It is also highly improbable that 
Mr. Emery, who had come here mainly for the purpose of making a 
final settlement of his father’s estate, was not apprised of the fact that 
his counsel was refused permission to appear in his behalf until five 
days after the event occurred. While Mr. Emery did not present 
himself in court or to the American consulate, he was nevertheless 
in the city of Shanghai from the 16th to the 21st day of August, and 
was not confined to his room on account of illness during that time. 

In view of the foregoing facts, the action of Mr. Emery in not 
appearing before the court between the 16th and 21st of August 
is reprehensible, and the action of Mr. Curtis in undertaking to 
represent Mr. Emery in violation of the rule of court was highly 
reprehensible; The law of some jurisdictions makes such conduct 
as Mr. Curtis has been guilty of herein a criminal offense punishable 
by fine or imprisonment, and the law of all jurisdictions makes such 
conduct contempt of court. • Mr. Emery’s reasons for not appearing in 
response to the citation are not satisfactory to the court, nor does the 
explanation which Mr. Curtis has given of his conduct convince the 
court that he was acting in good faith. Furthermore, during these pro¬ 
ceedings the attitude of Mr. Curtis toward the court has been argu¬ 
mentative, defiant, and discourteous, as has been his attitude toward 
the court privately and publicly since his return to Shanghai. The 
court is not convinced that Mr. Curtis meant to test the court’s rule 
relating to admission of attorneys to the bar in Mr. Emery’s case, be¬ 
cause both on the 16th and 21st of August he endeavored to file a 
petition and to make a speech in court on the subject of the wisdom 
and legality of the rule of court relating to the admission of at¬ 
torneys to the bar. On both of these occasions Mr. Curtis was 
informed by the court that if he would file a petition with the court it 
would receive due consideration. Prior to this time Mr. Curtis had 
served notice on the court privately of his intention to test the rule of 
court by mandamus proceedings in the United States circuit court of 
appeals for the ninth circuit. The records of the court also show that 
Mr. Curtis was in court on the 10th of June last when an examination 
was held under the rule; that he did not comply with the rule, but 
after hearing the questions and answers in open court, arose and 
asked for an examination, to which the court replied that the examina¬ 
tion was concluded, but that if Mr. Curtis would file his application 
and certificates of character in compliance with the rule they would 
receive careful consideration. (See Minutes, June 10, 1907.) 


CHAKGES AGAINST JUDGE UEBBEUS K. WILELEY. 


7 ^ 


In view of the foregoing, the court is forced to conclude that the 
action of respondent Emery in not appearing in response to the above 
mentioned citation evidences a disregard, neglect, and disobedience 
of an order of the court amounting to contemptuous conduct. 

The conduct of respondent Curtis in accepting employment as 
counsel and undertaking to appear in court as such without having 
complied with the rule of the court, his disrespectful and defiant atti¬ 
tude in court during the proceedings, and his general attitude toward 
the court both in private and in public since his return to Shanghai in 
May of this year convince the court beyond a doubt that he meant to 
proceed in utter disregard of and disobedience to the rule of coirrt, and 
that his conduct in this matter was intended to be and was in fact 
contemptuous. 

The court therefore finds H. A. C. Emery and George F. Curtis 
guilty of contempt of court, and sentences the former to pay a fine of 
$20 United States currency and the latter to pay a fine of $40 United 
States currency and all the costs of these proceeding; and in the 
event of their failure to pay said fines within twenty-four hours, the 
marshal is hereby directed to confine the former for a period of five 
days and the latter for a period of ten days in the jail of the American 
consulate at Shanghai. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, August 26, 1907. 

Note. —At the close of the reading of the judgment Mr. Lorrin 
Andrews stated that he appeared for Mr. Curtis and would call the 
attention of the court to the affidavit filed by Mr. Curtis. 

AFFIDAVIT. 


Shanghai, China, ss : 

G. F. Curtis, being duly sworn, deposes and says: 

That he is an attorney and counselor at law, a member of the bar 
of the Supreme Court of the United States, and of all the courts on 
record of [the State of New York, and that his name is duly enrolled 
as a member of the said courts in the office of the secretary of the 
State of New York; 

That deponent is also a member of the United States consular 
court at Shanghai, China; 

And by virtue of being a member of said courts, and by virtue of 
section 5 of the act of June 30, 1906, creating this act, claims to be a 
member of the bar of this honorable court; 

That on the 22d day of August, 1907, deponent was seated in the 
court room of this court during its session, when one Henry Emery 
was being examined by this court as to certain private matters.; 

That at the conclusion of said examination the judge of tffis court 
stated that a citation would issue for contempt of court against this 
deponent, who at that time and throughout the session of said court 
was sitting quietly in said court room and not making any attempt to 
address the court or take part in the proceedings; 

That upon the judge making that statement deponent came 
forward and said he was ready to answer to any charge made against 
him and to give any explanation the court might wish to hear, and 


74 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


for the account of the subsequent proceedings deponent refers to 
the report of the official stenographer made of the proceedings of 
said session and makes the same a part of this affidavit; 

That at the conclusion of said proceedings the court stated that a 
citation would be issued against deponent; that thereafter and in the 
afternoon of the said 22d day of August, 1907, deponent called at 
the court room of this court and interviewed the clerk, one F. E. 
Hinckley, and requested a copy of the citation or the charges against 
deponent and was informed by said Hinckley that no citation or 
charges had been filed, and that deponent had better see the judge 
at the Astor House. Deponent sent his card to the Judge’s room 
and received word that the judge was out; that no citation or charges 
had been served upon deponent up to the time of the signing of 
this affidavit; and deponent is unaware of the exact nature of said 
charges wherein a contempt of court is alleged. 

That deponent has practiced law for the last seventeen years, 
and is utterly unaware of having committed any contempt of court 
whatsoever. 

(Signed) George F. Curtis. 

Sworn to before me this 26th day of August, 1907. 

(Signed) F. E. Hinckley, 

Clerk of Court. 

TESTIMONY AUGUST 22, 1907. 

Appearances: George F. Curtis and H. A. C. Emery, each for 
himself. 

Examination by the Court. Is Mr. Emery in court this morning? 

By Mr. Emery. I am, sir. 

Q. Mr. Emery, on yesterday morning the following citation was 
issued [reads citation]. Now, Mr. Emery, you are called upon to show 
cause, if any you have, why you should not be punished for contempt 
of court in thus violating the order of the court. Any statement 
you may have to make I will be pleased to hear. 

A. As soon as I received the citation I came as quickly as I could 
from Chef 00 , so much so that I obtained a special passage by the 
United States ship Helena, as there were no regular ships leaving. 
This was on the Saturday, and I expected to arrive here, in the usual 
time, on Monday. Captain Gilmore told me the ship would leave 
at 10 o’colck and in the ordinary course of things we would arrive 
on Monday. Unfortunately, we got into a fog, and we had naval 
maneuvers, taking soundings, etc. I am not a marine man and do 
not understand such things. But finally we arrived here and got to 
Woosung, and then the captain said that owing to the tides—whether 
the tide was with him or against him I don’t know—we could not go 
in. I went to the captain and said: have got to get into Shang¬ 

hai at 2 o’clock. Do you think I could go over and catch the train 
to Shanghai?” 

Q. This was on Monday ? 

A. Yes, sir. The captain said, think you had better wait on 
board.^’ I saw no chance of catching the train, and we arrived here 
on that boat, a few hours, five or six, after court. My original inten¬ 
tion when I arrived was to consult Mr. Jernigan as my counsel and 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 75 

to have him take up the matter for me, whatever the case might be. 
I didn't even know what the matter was about; I knew it was 
something about my father's mr my own estate. He had acted for 
me before and I meant to ask him to take up the matter for me. 
When I got here, I heard he was on the point of death. I waited 
until the second day, I think it was the third day, and I called on 
Mr. Curtis, and said to Mr. Curtis, ‘‘Will you take up the case?" 
and handed him the papers, and he said, “I will see what I can do." 
I did not know what Mr. Curtis's attitude in regard to the court 
was. Since that time I have been confined through illness, and one 
thing or another. That is my excuse, or, rather, reason. 

Q. Mr. Emery, when you approached Mr. Curtis, did not you 
know that he was not a member of the bar of this court? 

A. No, sir; I did not. 

Q. Did not he tell you that he was not a member of the bar of this 
court ? 

A. He told me only that he had had some trouble with the court. 

Q. What did he say? 

A. I do not remember the exact words. He said there had been 
some trouble as regards the court, but that I did not pay much attention 
to, because I used to read the papers at Chefoo, and it was remarked 
to me at the time—it was remarked by Mr. Fowler, I think—that Mr. 
Curtis was appearing. I think he said, ‘H see that Mr. Curtis appears 
as attorney without taking an examination." 

Q. Did you read the paper yourself? 

A. As a matter of fact, I think that Mr. Fowler put it on my desk 
with that remark. 

Q. As a matter of fact, did not you and Mr. Fowler both understand 
that he was appearing in the particular case of Cunningham v. 
Rodgers as an attorney in fact and not as an attorney at law ? 

A. I can only speak for myself. 

Q. Did you not so understand it? 

A. No, sir. 

Q. When you came here and asked Mr. Curtis to take up your case, 
did he mention the fact to you that he had not been admitted as a 
member of the bar of this court? 

A. He said there was some trouble between him and the court; 
that was all. 

Q. Mr. Curtis appeared for you, or attempted to appear for you, in 
this court on Friday, the 16th. Were you with him in court at that 
time ? 

A. No; I was not. 

Q. Did the court at that time refuse to permit him to appear in 
your behalf for the reason that he had refused to comply with the 
rules of the court relating to admission to the bar? 

A. I did not know that. 

Q. You did not see that in the papers ? That fact appeared in three 
or four daily papers. 

A. I was ill all day. 

Q. Did Mr. Curtis thereafter inform you that he was not permitted 
to appear in your behalf? 

A. I think he told me yesterday what it was. The only thing I 
know was he said there was some trouble. 


76 


CHARGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


Q. Did Mr. Curtis tell you that he had endeavored to represent 
you in this court, and that the court had not permitted him to appear 
m your behalf ? Did not he tell you that before yesterday ? 

A. No, sir. 

Q. You did not know that until you had been otherwise informed 
of it? 

A. No, sir; I think it was your honor told me yesterday. 

Q. You had not heard that before? 

A. No, sir. 

Q. If Mr. Curtis had told you about it you would likely know 
about it ? 

A. Yes, sir. 

Q. Mr. Emery, as a matter of fact, I understand from your testi¬ 
mony that you arrived here on Monday evening, the 12th, and that 
you had not so much as introduced yourself to the court, or to any 
member of its staff, until yesterday afternoon at 4 o’clock. 

A. In which way do you mean ‘‘introduced?” 

Q. By coming and reporting to the court and stating that you were 
ready to respond to the citation of the court. Of course this was a 
personal matter on which you were called into court. You had no 
reason to know that you needed a lawyer. 

A. I had the full determination when I came to engage a lawyer, 
because, in the first place, our leave is limited in the consular serv¬ 
ice. This is a special leave I obtained. We are only allowed ten 
days, and as Mr. Fowler intends to go home shortly it was very neces¬ 
sary for me to be represented by counsel, if possible, to save time. 
That was my full intention. It was my intention to go to Mr. 
Jernigan; then when I found he was sick, I gave the papers to Mr. 
Curtis. 

Q. And you thought you were represented until the afternoon of 
the 21st? 

A. Yes, sir. 

(On the 26th day of August Mr. H. A. C. Emery took oath in open 
court that he had read the above testimony given by him on the 22d 
day of August, 1907, and that he found the same to be true and cor¬ 
rect. Signed: F. E. Hinckley, clerk of court.) 

CITATION TO GEORGE F. CURTIS. 

By the Court. Citation will issue to Mr. George F. Curtis to 
appear before this court to-morrow at 10 o’clock to show cause 
why he should not be adjudged guilty of contempt of court. 

By Mr. Curtis. I am ready to appear now. 

Q. Mr. Curtis appears in court and waives service of citation. 
Mr. Curtis, you desire to give evidence on this matter at this time? 

A. I am ready to answer any questions the court asks me. I 
waive service. 

George F. Curtis, sworn, testified as follows: 

Examination by the Court. Mr Curtis, you will please state 
your connection with this episode. Have you been present this 
morning and heard it ? 

By Mr. Curtis. Yes; I have been present and heard every word 
of it. 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 77 

Q. You know what Mr. Emery has said, you are fully apprised 
of the whole situation? 

A. Yes. 

Q. The court will be pleased to have any statement you may care 
to make in regard to the matter. 

A. I will say that on the morning of the 18th—I think there is 
some mistake in stating that it was on the 16th—it was on the 19th 
that I appeared and moved that a special appearance be entered 
for Mr. Emery. 

(The clerk of court consults the records and finds that the date 
referred to was in fact the 16th.) 

Q. Proceed, Mr. Curtis. 

A. Then it was on the morning of the 15th, while at breakfast at 
the Astor House in one of the private rooms—Mr. Emery came in 
and sat at the table with me, and told me he^ had come down to 
appear at some proceedings at court, wished to see Mr. Jernigan 
and he was sick. He said he had no money, was ouite sick—he 
looked it—and he knew me before in China, in Cheroo, with Mr. 
Fowler. I was entertained at Chefoo by Mr. Emery. He asked if 
I could help. I said I will do what I can regardless of the fact you 
have no money. The court will not permit me to appear; it has 
ruled that I can only appear as attorney in fact in the Cunningham 
case, but this is a similar probate case to the Cunningham v. Rodgers 
case; I will go into court and do what I can for you. The question 
now is as to whether or not the court has a right to demand of me to 
state the conversations or advice I gave Mr. Emery. I do not hesitate 
to do so if the court wishes it. I believe it is a privileged statement— 
statements from client to attorney or from attorney to client—but I 
may state to the court that I have reason to believe that the court at 
Nanking, where his father’s will was probated—and I was and am of the 
opinion that this court has no probate jurisdiction except the super¬ 
visory control over the consuls in settling the estates under the law. 
I so stated it to Mr. Emery, but he did not agree with me as to the pro¬ 
bate business at Nanking. I told Mr. Emery then that it was useless 
for me to try to appear for him, that he was of opinion the court at 
Nanking had probate jurisdiction; then he must admit tliis court had 
jurisdiction, because unless he held that if this court was created in 
July, 1906, the decedent having died in 1905, that this law creating 
this court could not be retrospective, and that would be a defense to 
the jurisdiction of the court. 

Q. Mr. Curtis, you are in court by reason of the fact that you 
undertook to appear in court in violation of the rule for the admission 
of attorneys to the bar of this court. It does not require you to ram¬ 
ble over the whole field. State what your professional conduct and 
relation was to Mr. Emery and what you did. 

A. I started out to tell the court that the communications between 
attorney and client are privileged. 

Q. I did not ask you to communicate what advice you gave him. 
The point for you to consider is this: That you, in violation of the 
rule of the court relating to the admission of attorneys to practice 
before this court, have undertaken to appear here before this court to 
represent Mr. Emery. The court wants any explanation you may 
have on that point. 

A. My statement of that is this: That I did come up here, as the 
court is aware, and asked to interpose a plea to the jurisdiction of the 


78 


CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


court, and filed a special appearance for Mr. Emery, under protest^ 
for that purpose alone. The court overruled me, and then told me 
to sit down and I sat down. As I understand the rule of court, I 
could not test the rule of this court to question my right to appear as 
attorney for Mr. Emery unless there was some overruling by the court 
of my right to be here. In the Cunningham case, I was employed by 
Mr. Edward R. Cunningham in fact before this court was organized. 
I appeared as an attorney of fact, was not permitted to appear as an 
attorney at law. 

Q. You appeared as an attorney in fact? 

A. Yes; I had to appear. Now this case is a parallel case. 

Q. Had you any power of attorney from Emery ? 

A. I had his authorization, not his written power of attorney. 

Q. Had you not been informed by the court prior to this that you 
would not be permitted to appear in any case except the Cunningham 
case? 

A. One minute. I wish to grasp the question fully. The court 
told me when I first came here- 

Q. I donT care about that. You answer the question I gave you. 
I don’t care for the history of the Cunningham case. 

(Witness asks for repetition of the question, and stenographer reads 
as follows: Q. Had you not been informed by the court prior to this 
that you would not be permitted to appear in any case except the 
Cunningham case?) 

A. I don’t recall it. 

Q. Have you anything else to say, Mr. Curtis? 

A. That afternoon following, after I appeared here, Mr. Emery 
appeared in my office. He was not well, in fact, was very sick, and has 
been very sick since. Whether he recalls it I do not know, but I 
believe other witnesses were present, when I told Mr. Emery the court 
had refused to permit me to appear for him and that he might see it in 
the evening papers. I told Mr. Emery that the only thing he could 
do was to appear for himself or get an attorney. I gave him my 
opinion on the law of his case. I have seen Mr. Emery quite often 
since, and almost every time I saw him he was very sick. In fact, he 
was too sick to come up this morning, in fact was vomiting blood this 
morning in front of the Astor House, and in fact is so sick now that he 
is upon the point of fainting. I have acted as best I could for Mr. 
Emery, have not charged him a cent, and have even assisted Mr. 
Emery. I know Mr. Fowler very well, intimately. I met Mr. 
Emery through him, and have done what I could for Mr. Emery as a 
fellow-man. I have had his statement taken by a stenographer. He 
came up to my room this morning. He was up there yesterday, and 
I have come down to the court this morning to brace him up; tried 
to keep him in position that the court might see him this morning, 
and I doubted whether he could come to this court this morning—he 
was vomiting blood. In regard to the contempt, I have not the 
slightest idea there was any contempt. As I said yesterday in behalf 
of Mr. Emery and as an amicus curise, I would ask that the citation 
not issue against him, and if the court had given me a chance, I would 
have told you why he should not come here. I advised him to get coun¬ 
sel ; he could not get me as counsel and I advised him to get some one else. 
When he came to see me several days had already passed; he was due 
on the 12th, and it seems it was the 15th when he saw me. I have 



CHARGES AGAINST JUDGE LEBBEUS E. WILFLEY. 79 

not the slightest intention of being in contempt of this court or dis¬ 
obeying any of its orders, but on the contrary I intended to petition 
the court to direct the clerk to file certain cases for which I was 
attorney at law in the consular court, to which this court is successor^ 
and which I went to Washington in order to get this court established 
in order to try. My purpose is to get the ruling of the court on these 
very cases, whether I am entitled to practice in this court. 

Q. You may file your petition with the clerk. 

A. I was prevented from doing that, but—the court prevented me. 
I have certain exhibits which I do not wish to file with the clerk. If 
I filed them with him, I could not get them out when I wanted them, 
and my purpose this morning was to make a motion that the court 
would direct the clerk to receive these exhibits one from Secretary 
Taft and one from Mr. Denby, the present consul-general, and return 
them in order that I might keep the originals, which I prize very 
highly, and from the ruling of the court I would not be able to get 
them out. I believed then and believe now that after the court reads 
my petition- 

Q. Mr. Curtis, the court does not see the bearing that has upon the 
issue before it. The issue is whether you should be punished for con¬ 
temptuous conduct toward the court in this, that in violation of 
the rule of court relating to the admission of attorneys to the bar of 
this court, with full knowledge, you appeared here and undertook to 
represent a client. The testimony this morning shows you have 
involved your client in difficulty and embarrassment. He is before 
the court to show cause why he should not be punished for con¬ 
tempt. That is the issue, and upon that I will hear anything else 
you wish to say. 

A. I wish to inform the court that there is absolutely no intention 
to offend this court or its rulings—not the slightest. I try to be as 
courteous to a man as I possibly can. I never want a man to be more 
courteous than I am myself. I have been in the Government service 
a long time and I think I know the law too thoroughly to conduct 
myself improperly in or out of court, or use language that I would not 
use in the presence of ladies whom I respected. I have studied legal 
ethics, I have been brought up in the atmosphere of the Supreme Court 
of the United States since I was a boy, and this is the first time in my 
life I have been ever cited to appear for contempt of court. And I 
disclaim emphatically that there is any intention on my part to antag¬ 
onize this court, be in contempt, or offend its dignity in the slightest 
degree. On the contrary, I hold that the dignity of the court is pre¬ 
served by the dignity of the members of its bar, and those who practice 
at the same. I have endeavored in this matter to conduct myself 
with dignity, honesty, *and courage. As far as involving Mr. Emery 
in trouble, I do not believe there is an attorney who would have done 
more than I tried to do for him out of mere friendship and good will. 
I can assure the court, as others will, that Mr. Emery has been a very 
sick man, exceedingly sick, and I did everything I could this morning 
to stand by him and get him here and see he got into court. I think 
he will bear me out in every word I say. 

And as far as he informing you that I did not tell him that I was 
not allowed to appear for him in his case, I think he was too sick to 
recall the facts. I believe, though, that I have the right to appear 
here under the law of comity that governs the Federal courts and the 


80 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


Supreme Court. Not since the organization of this Government has 
a Federal court denied to a member of the bar of the Supreme Court 
of the United States the right to appear in this court to practice. 
The Supreme Court of the United States admits members of the 
highest courts of the States on motion without petition. 

Q. The court is familiar with those rules and the reasons for them, 
but this court has made another rule which must stand until it is 
revoked by this court or overruled by higher authority. In the mean¬ 
time the rule, as it stands on the records of this court, must be observed 
strictly. If you have any further statements to make with reference 
to these contempt proceedings, the court will hear them, but will not 
enter into any argument with you on the legal validity of the rule of 
the court against which you have offended. That is what we want to 
hear you on. The rule is here and in force and it is your duty to 
observe it, and if you violate the rules, the regulations provide for a 
method by which the court may punish you and you are how on trial 
for a violation of the rule of court and being given an opportunity to 
make such explanation as you may have. 

A. My further explanation is this, that the court has just stated 
that unless the rule is revoked or the court is reversed, that this rule 
stands. Now, how can I test the rule? 

Q. Never mind how you may test the rule. You must respect it. 

A. I have. I have respected the rule and I have been crushed. I 
have lost thousands of dollars. I have borne it patiently. I have 
traveled 20,000 miles. I have come out here with the expectation 
there would be no question of my admission. I was told by Mr. 
Scott that the court had been written to saying that vested rights 
of clients were probably infringed by this rule. 

Q. One moment, please. We will not pursue that line. Have 
you anything further on the issue? 

A. I will simply say in conclusion I have not the slightest idea there 
was contempt to come up here and get a ruling. The court did not 
suggest that I could appear as attorney in fact. I filed no papers 
to that effect. It was furthest from my idea to offend this court. I 
know the court is here appointed by the President. There is no 
appeal except through San Francisco, months of time elapse. I 
have been very careful not to transgress the rules. If I have done 
anything which the court considers as contempt, it was done uncon¬ 
sciously. Both my common sense and my self-interest and my respect 
for the court would certainly prevent me from doing anything that 
might be considered as contempt in the slightest, and if I could 
make my remarks stronger, I would certainly do it. I was moved 
by sympathy for Mr. Emery. 

Q. You have gone over all this. If you have anything further, 
please state it. 

A. As far as the present minute, I can’t recall anything. 

By the court: If there is any good reason you may have, or may 
hereafter have, or that occurs to you, you may file it with the court, 
why the court should not punish you for your conduct in this case. 
I want to give you a full and fair hearing on it. The purpose of the 
court was to cite you regularly and give you full opportunity; but 
you were present, you heard the proceedings, and you waived cita¬ 
tion, and voluntarily offered to make such explanation, and you have 
made a full and lengthy explanation. Now the court will take this 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 81 

matter under advisement and deliver decision at 10 o’clock Saturday. 
In the meantime, if you have any reasons why the court should not 
punish you, you may file them with the court. 

AFFIDAVIT. 

Joseph W. Rice, court stenographer of the United States court for 
China, being duly sworn, deposes and says that the foregoing and 
hereto attached pages, numbered consecutively 1 to 15, are a true 
and correct transcript of shorthand notes taken by him at a session 
of court on August 22, 1907. 

(Signed) Joseph W. Rice, 

Court Stenographer. 

Subscribed and sworn to before me at the city of Shanghai, China, 
this 28th day of August, 1907. 

(Signed) F. E. Hinckley, 

Cleric of Court. 

In the United States court for China at Shanghai, September, 1907, 
before the honorable L. R. Wilfley, judge. 

Toeg <& Read v. T. Suffert. 

Judgment. 

SYLLABUS. 

The common law which the statutes of the United States have made enforceable in 
the courts of the United States in China does not include those portions of the com¬ 
mon law of England existing at the time of transfer of sovereignty which have not 
been introduced generally into the laws of the various States of the Union by being 
applied and developed by the State courts and the United States courts and incor¬ 
porated into the statutes and constitution of the States. United States v. Biddle, 
United States court for China, March 6, 1907. 

Although wagering contracts were enforceable at common law, they are held not only 
nonenforceable, but also illegal and void in the United States generally, and there¬ 
fore are held in the United States jurisdiction in China, nonenforceable, illegal, 
and void. 

A decision of the Supreme Court of the United States holding that a wagering contract 
is void as being against public policy is binding upon the United States court for 
China. 

The court fin^s the transaction between plaintiffs and defendant herein a wagering 
contract, so intended by both parties and bearing unmistakable marks as such. 
Therefore the contract is void as against public policy. 

The court further finds that plaintiffs, as brokers,, were privj’’ to the intent of the prin¬ 
cipal parties. Therefore, on the rule of particeps criminis, though claiming as 
agents only, they can not recover. 


opinion. 

This is a suit brought by Toeg & Read, a firm of stock brokers in 
Shanghai, against T. Suffert, an American citizen, on a note for 
4,949 taels, given in payment of losses sustained by the latter as a 
result of a transaction in shares on the Shanghai Stock Exchange, 
in which Toeg & Read acted as Suffert’s agents. The history of the 
transaction, according to the testimony, is as follows: 

On the 15th day of April, 1902, defendant gave plaintiffs an order 
for the purchase of 75 ^‘Farnham-Boyd” shares, which order was 


29865—08-6 



82 CHAEGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

executed by the latter, who paid for the said shares at the rate of 
267.50 taels per share. These shares were purchased for the July 
settlement.’’ They were sold under instructions from defendant on 
July 26 at 190 taels per share. The net loss sustained after de¬ 
ducting interest, commissions, and other small items was 4,949 taels. 
On August 31, 1902, Suffer! executed the following note to plaintiffs: 

Shanghai, August 31, 1902. 

On demand I promise to pay to the order of Messrs. Toeg & Read 
the sum of 4,949 taels, Shanghai sycee, for value received. 

(Signed.) T. Suffert. 

Demand having been made upon the foregoing note and payment 
refused, suit was instituted in this court on said note on May 6, 1907. 
Defendant in his answer filed herein admits the execution of said note, 
but denies liability under it on the ground that the obligation in satis¬ 
faction of which it was given grew out of a transaction on the Shang¬ 
hai Stock Exchange, which was in fact and in law a gambling trans¬ 
action, and for this reason the alleged obligation is illegal and void. 

The foregoing facts are undisputed. 

The main fact in dispute in this case is whether the transaction was 
intended to be in the nature of an investment or a settlement on dif¬ 
ferences. Plaintiffs allege that they were ignorant of defendant’s 
intention in the matter, while defendant contends that it was his pur¬ 
pose to enter upon a purely speculative venture and that this pur¬ 
pose was made known to the plaintiffs at the time the orders were 
given. 

The act of June 30, 1906, creating this court authorizes said court 
to apply the laws of the United States now in force in the consular 
courts in China, and, when such laws are deficient, ^The common law 
and the law as established by the decisions of the courts of the United 
States shall be applied by said court in its decisions and shall govern 
the same.” This court has defined the common law, in the case of 
the United States v. Biddle, to mean the common law of England 
and the statutes passed in aid thereof which were adapted to the 
situation of the American colonies at the date of transfer of sover¬ 
eignty ^^as modified, applied, and developed generally by the decisions 
of the State courts and the decisions of the United States courts, and 
incorporated generally into the statutes and constitutmns of the 
States.” 

It will be seen from the foregoing that this court will only enforce 
those principles of the common law which have'been introduced gen¬ 
erally into the laws of the various States of the Union, and which, in 
the language of Chief Justice Marshall, ^Torm the substratum of the 
laws of every State,” so that in the case under consideration it will 
not be sufficient to show what the common-law rule relating to gam¬ 
bling and wagering was at the date of the transfer of sovereignty un¬ 
less it also be shown that said rule has been incorporated generally 
into the law of the various States of the Union and applied generally 
by our State and Federal courts. The act creating this court provides 
in terms that the law established by the decisions of the courts of the 
United States shall be applied by this court. 

An examination of the authorities will disclose the fact that the rule 
of law relating to stock-exchange transactions as found generally in 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


83 


the statutes of the States and as applied and developed generally by 
the decisions of the State courts and of the United States courts, is 
clear and well established. Nearly all of the States of the Union 
have enacted statutes covering this subject, which make trading on 
the stock exchange on ^^margins,’^ on ^d’uture delivery,” or with view 
to ^‘settlement on differences,” gambling contracts, and hence illegal 
and void. 

Great Britain has also enacted statutes on this subject, the most 
important of which are Sir John Barnard’s Act. 7 (George II, chap. 
8, and 8 and 9 Victoria, chap. 109, sec. 18.) Sir John Barnard’s Act 
dealt with the “infamous practice of stockjobbing,” and was more 
particularly directed to wagers on the price of stock, or, as they are 
sometimes called, “agreements to pay differences.” This was fol¬ 
lowed by the statute of 8 and 9 Victoria (chap. 109, sec. 18), which 
provides “that all contracts or agreements, whether by parol or in 
writing, by way of gambling or wagering, shall be null and void; 
and that no suit shall be brought or maintained in any court of law 
or equity for recovering any sum of money or valuable thing alleged 
to be won upon any wager, or which should have been deposited in 
the hands of any person, to abide the event on which any wager 
should have been made.” In interpreting this act, the ‘^English 
courts, while holding that a transaction on the stock exchange with 
view to settlement on differences was a wagering contract which 
could not be enforced between the principals, decided that a contract 
between one of the parties to the transaction and his broker by which 
the broker incurred liabilities for his principal while acting in con¬ 
formity to the rules of the stock exchange, was not a gambling con¬ 
tract within the meaning of the law. This was the holding of Mr. 
Justice Bindley in the case of Thacker y. Hardy which is the leading 
case on the subject. (4 Q. B. D. 685, C. A.) 

The American courts, however, have not followed the early English 
decisions on this subject, but have seen fit to give a different inter¬ 
pretation to statutes of a similar nature, and the modern decisions 
of the courts of Great Britain which have been brought to our atten¬ 
tion indicate that they also are unwilling to follow the rule laid down 
by the early English decisions. It is certain, however, that the rule 
of the early English courts has not been adopted generally by the 
American State and Federal courts. The general rme on the subject 
has been clearly and succinctly stated by Benjamin in his work on 
sales, and is as follows: 

At common law wagers which did not violate any rule of public decency or morality, 
or any recognized principle of public policy, were not prohibited. Since the passing 
of the above statute (8 and 9 Viet., chap. 109, sec. 18), however, cases have arisen 
which present the question whether an executory contract for the sale of goods is not 
a device for indulging in the spirit of gaming which the statute was intended to repress. 
It has already been shown (ante, par. 78, etc.) that a contract for the sale of goods to 
be delivered at a future day is valid, even though the seller has not the goods nor any 
other means of getting them than to go into the market and buy them. But such a 
contract is only valid where the parties really intend and agree that the goods are to be 
delivered by the seller and the price to be paid by the buyer. If, under guise of such 
a contract, the real intent be merely to speculate in the rise and fall of prices, and the 
goods are not to be delivered, but one party is to pay to the other the difference between 
the contract price and the market price of the goods at the date fixed for executing the 


84 


CHAKGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


contract, then the whole transaction constitutes nothing more than a wager and is 
null and void under the statute. 

The Supreme Court of the United States, in a number of decisions, 
has adopted in terms the rule as laid down by Benjamin, and has 
carried its application one step further. It has also held that a 
broker who, in the capacity of agent, represents a trader on The 
stock exchange may be so connected with the transaction as to ren¬ 
der any contract which he may make with his principal illegal and 
void. The leading cases on this point are Irwin v. Williar (110 U. S., 
509) and Embrey v. Jemison (131 U. S., 344). In the case of Irwin v: 
Williar the court said: 

In Roundtree i’. Smith (108 U. S., 269) it was said that brokers who had negotiated 
such contracts, suing not on the contracts themselves, but for services performed and 
money advanced for defendant at his request, though they might under some circum¬ 
stances be so connected with the immorality of the contract as to be affected by it, 
they are not in the same position as a party sued for the enforcement of the original 
agreement. It is certainly true that a broker might negotiate such a contract with¬ 
out being privy to the illegal intent of the principal parties to it which renders it void, 
and in such a case, being innocent of any violation of law, and not suing to enforce an 
unlawful contract, has a meritorious ground for the recovery of compensation for ser¬ 
vices and advances. But we are also of the opinion that when the broker is privy 
to the unlawful design of the parties, and brings them together for the very purpose of 
entering into an illegal agreement, he is particeps criminis and can not recover for serv¬ 
ices rendered or losses incurred by himself on behalf of either in forwarding the trans¬ 
action. 

In England it is held that the contracts, although wagers, were not void at common 
law, and that the statute has not made them illegal, but only nonenforceable, Thacker 
V. Hardy, ubi supra, while generally in this country all wagering contracts are held to 
be illegal and void as against public policy. 

In the same case the court made the following observation: 

* * * 2 is was properly said in the charge, it makes no difference that a bet 
or wager is made to assume the form of a contract. Gambling is none the less such 
because it is carried on in the form or guise of legitimate trade. It might therefore be . 
the case that a series of transactions, such as that described in the present record, might 
present a succession of contracts, perfectly valid in form, but which on the face of the 
whole, taken together, and in connection with all the attending circumstances, might 
disclose indutiable evidences that they were mere wagers. 

The general principle laid down in the case of Embrey v. Jemison 
was that a contract for the purchase of future delivery cotton, neither 
the purchase nor delivery of actual cotton being contemplated by the 
parties, but the settlement in respect to which was to have been upon 
the basis of mere ^‘difference’’ between the market price and contract 
price of said cotton futures according to the fluctuations of the market 
was a wagering contract, and illegal and void as well under the stat¬ 
utes of New York and Virginia as generally in this country. The 
court also held that the original payee can not maintain an action on a 
note, the consideration of which is money advanced by him upon or 
in execution of a contract of wager, he being a party to such contract, 
or having directly participated in the making of it in the name, or on 
behalf of one of the parties. (131 U. S., 336.) 

The attitude of the State courts generally on the question under 
consideration is illustrated by the utterances of the supreme court of 
the State of Nebraska in the case of Sprague v. Warren (3 L. R. A., 
679) and by the supreme court of Iowa in the case of First National 
Bank of Creston v. C. W. Carroll and wife (8 L. R. A., 275). 

' In the latter case the court said: 

The mere fact that there was Bpecific property about which the transaction occurred 
would make no difference. Parties may as effectually gamble with reference to actual 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 85 

property as with reference to the prices of different classes of property. The cases do 
not turn upon that point, but upon the actual intent of the parties. 

The court also approved the following rule of the supreme court of 
Pennsylvania laid down in the case of Waugh v. Beck (114 Pa., 422). 

A transaction in stocks by way of margin, settlement of differences and payment of 
gain or loss, without intending to deliver stocks, is a mere wager. 

In the case of Sprague v. Warren the supreme court of Nebraska 
held that— 

The rule is well established that when the parties to an executory contract for the sale 
of property do not intend that the property shall be delivered, but that the transaction 
is to be settled by the payment of the difference between the contract price and the 
market price of the article at a time stated, the contract is void. 

The court also observed in this case that— 

It is the duty of the courts, therefore, where the validity of the contract is challenged, 
to receive,evidence outside of the words of the contract and examine the facts and cir¬ 
cumstances which attended the making of it in order to ascertain if possible whether it 
was intended as a bona fide transaction for the purchase and delivery of property, or 
merely colorable. 

In Barnard v. Backhaus (52 Wis., 593) the supreme court of Wis¬ 
consin says: 

And to justify a court in upholding such agreement it is not too much to require a 
party claiming rights under it to make it satisfactorily and affirmatively appear that 
the contract was made with an actual view to delivery and receipt of grain, not as an 
evasion of the statute against gaming, or as a cover for a gambling transaction. 

In view of the foregoing principles of law which have been thoroughly 
and universally established by the decisions of the courts of the United 
States, and which have been incorporated generally into the statutes 
of the States, it is manifest that the fate of this case must turn upon 
the answer given to the following question: Was it the intention of 
defendant Suffert and plaintiff Read, at the time the order to purchase 
the shares in question was given, that said purchase should be for the 
purpose of investment and for the actual delivery of the shares, or was 
it understood between the said parties that the contract was made 
with a view to a settlement on ^‘differences?” The testimony on this 
point is somewhat contradictory, plaintiff Read stating that he had no 
knowledge of defendant’s intention when the transaction was made, 
defendant, on the other hand, holding that it was his intention to specu¬ 
late on the rise and fall of stocks, and that he informed plaintiff Read 
of this fact on various occasions. 

The testimony of Suffert on this point is as follows: 

I told Mr. Read, not only on one occasion but on several occasions, that I was buying 
and selling only on differences, that I had never taken the shares up with anybody else, 
or intended to. I told him that to protect me, so to speak. (Testimony, p. 33.) 

In view of the conflict of testimony on this point, it becomes neces¬ 
sary for the court to examine all the tesitmony produced at the trial of 
this case and to consider all the circumstances attending the transac¬ 
tion for the purpose of ascertaining the real intention of the parties. 
The record snows that plaintiff Read met the defendant at the Race 
Club in 1902, at which time they engaged in a conversation on the sub¬ 
ject of trading on the stock exchange. As a result of this conversation 
it appears that plaintiffs purchased for defendant’s account a large 
number of shares during the six months immediately following. Ac¬ 
cording to Read’s testimony, plaintiffs purchased for defendant’s ac¬ 
count on January 24, 30 “Pqlps,” on February T7, 60 “Pulps,” on 


86 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


April 15, 75 ^Tamhams;” on July 26 he sold 75 ^Tamhams.” Mr. 
Read also testified that the ^ ^actual transaction upon which this case 
is based was for the July settlement.” (Testimony, p. 4.) The record 
also shows that plaintiffs submitted statements covering these trans¬ 
actions to defendant Suffert on various occasions, which indicate that 
all of said purchases were for future delivery. 

Eliminating, for the time being, the consideration of the testimony 
of defendant Suffert on the question of intention, it is hardly reasonable 
to suppose from plaintiff Read^s own testimony that he entertained 
the view that this transaction was a bona fide one for the actual purchase 
and dehvery of shares. The testimony shows that he knew very little 
about Suffert at the time the transaction was made, and what he did 
know was not such as to warrant him in making a large investment on 
his behalf. He testified on this point as follows: 

Q. Did he (Suffert) come to you in the first instance or did you go to 
him? 

A. My recollection is that he first approached me at the coffee table 
at the Race Club. He gave me an order to buy twenty Langkats. 

Q. At that time did you know Mr. Suffert as an operator in shares ? 

A. I did not know that. He was a member of the Race Club and at 
that time I believe he had one or two ponies. (Testimony, p. 6.) 

On the cross-examination Mr. Read made the following statement: 

Q. When you bought these shares, which you allege for Mr. Suffert, 
had you any knowledge of his financial position ? 

A. None whatever, except that he was a member of the Race Club. 

Q. That is not a very expensive matter. 

A. No; but race ponies is. 

Q. You bought shares to an amount exceeding 30,000 taels on 
account of Mr. Suffert? 

A. Yes. 

There is nothing in the record which goes to show that defendant 
Suffert was a man of any financial standing in this community, or that 
plaintiffs had any reason to believe that he was. The testimony also 
shows that these transactions took place at a time when gambling on 
the stock exchange was rife in Shanghai. The testimony of Mr. 
Read on this point is as follows: 

Q. You say this was the top of a big boom? You mean in specu¬ 
lation ? 

A. You can call it speculation if you like. 

Q. Buying for a rise ? 

A. Everybody had been making money. 

Q. Over speculating? 

A. People had been making money. 

Q. DonT you mean by speculating? 

A. I admit to a great extent. 

It thus appears that the testimony in this case establishes the fol¬ 
lowing facts: 

(1) That plaintiffs made and executed the above-mentioned con¬ 
tract, involving the outlay of large sums of money, without any 
knowledge of the financial standing of defendant Suffert further than 
that he was a member of the Shanghai Race Club and owned one or 
two ponies; 

(2) That when the stocks in question were purchased for defendant 
no demand was made upon him for the purchase price of the same; on 


CHAEGES AGAINST JUDGE LEBBEUS K. WILFLEY. 87 

the other hand a number of accounts were rendered by plaintiffs cov¬ 
ering said transactions, all of which indicate that the parties under¬ 
stood the transaction to be with view to settlement on differences; 

(3) That speculating in shares in this community is usually rife, 
and that the transaction under consideration was made during a 
period when there was a so-called boom in stocks in Shanghai; 

(4) That defendant has testified clearly and specifically that he 
told plaintiff Read on several occasions that the buying and selling 
was on differences and that he never had taken up shares with any¬ 
body else and never intended to do so with him. 

In view of these facts, it is impossible, to escape the conviction that 
the contract in question was made with view to settlement on differ¬ 
ences pure and simple and that it was so understood by the parties at 
the time the contract was made. 

We hold, therefore. 

First. That the transaction in question which gave rise to the obli¬ 
gation upon which this suit is based was a gambling transaction 
which, under the law, was illegal and void. 

Second. That said plaintiffs herein, acting as brokers for said 
defendant in said transaction were privy to the unlawful designs of 
the parties to the contract and aided in bringing them together for the 
purpose of entering into said illegal agreement, and thereby became 
particeps criminis, hence can not recover for services rendered or losses 
sustained by them on behalf of said defendant in said transaction. 

The plaintiffs will pay the costs of this suit. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, China, September 3, 1907. 

I United States court for China. 

United States of America v. S. R. Price. 

Assault with a Dangerous Weapon. 

JUDGMENT. 

The information in this case charges one S. R. Price with an assault 
on one A. Jovansen in the city of Shanghai, China, on the 24th day of 
July, 1906. The information was filed on the 29th day of December, 
1906. The case was tried on the 15th day of January, 1907. The 
testimony in the case disclosed the following facts: A. Jovansen, the 
accusing witness, was on the 24th day of July, 1906, the lessee and 
manager of St. George’s Hotel, which is located at No. 205 Bubbling 
Well road, in the city of Shanghai, China. On the above-mentioned 
date the accused, in company with one Mrs. Anna Stewart, entered 
the main dining room of the hotel and ordered refreshments. Where¬ 
upon the waiters, who were Chinese boys, told Jovansen, who was in 
the pantry of the hotel, that the woman was '^not a fit person to be 
served.” 

No. 1 dining room boy testified that he had formerly been a servant 
in the Astor House Hotel, Shanghai, where he had known said Mrs. 
Stewart when she was a boarder at the said Astor House before, and 
that she was ''not a proper person.” Jovansen upon receiving this 


88 


CHABGES AGAINST JUDGE LEBBEUS K. WILELEY. 


information instructed the boys not to serve the parties. Price, upon 
learning the reason why they were not served, went to the rear of the 
hotel and found Jovansen in the pantry. 

Price testified that he approached Jovansen and said, ‘Jovansen, 
what is the matter with you?’ I told him he was absolutely wrong, 
- he persisted in being impudent and forward, and so I told him that if 
it were not for making a scandal I would punch the top of his head off, 
or words to that effect. I told him he was crazy.” Price then returned 
and sat down by his companion. 

After waiting for a time and finding that the refreshments were not 
forthcoming, the said Mrs. Stewart proceeded to the rear of the hotel, 
where she entered the barroom and after cursing and abusing the 
Chinese boys, entered the pantry where Jovansen was and began 
swearing at him. 

Mrs. Stewart in her affidavit filed in this case states that she took 
the matter up with Jovansen herself. Her language is as follows: 
“Ajina Stewart, being duly sworn according to law, deposes and says: 
During her stay in Shanghai in July, 1906, through a mutual friend, 
she made the acquaintance of S. R. Price, esq., at the Astor House 
Hotel. In the afternoon of July 25, A. D. 1906, the said Price drove 
her out to Siccawei, where he wanted to try some revolvers (two) 
which he had just purchased. That having tried the revolvers in 
question, they stopped at the St. George’s Hotel to have some refresh¬ 
ments; these, however, were refused them, and she was aware that 
Mr. Jovansen for some reason did not wish to serve them. On her 
going to him for an explanation, which was unsatisfactory to her, she 
made the assertion that he would regret his action when her husband 
came to Shanghai, where she expected him to be in a few days.” 

The dining room boys, the barroom boys, and the house coolie tes¬ 
tified that the said Anna Stewart entered the barroom, using very 
bad language, and approached Jovansen, swearing at him and abusing 
him for not serving her. Jovansen testified that she went so far as 
to draw a revolver upon him. The evidence further showed that 
Price followed her to the rear of the building and entered the pantry 
where he found her quarreling with Jovansen. Price testified that 
Jovansen had a bottle in his hand when he (Price) entered the pantry 
and was ordering the woman out of the room, and stated that Jovan¬ 
sen picked up a knife, which was lying on the table, whereupon Price 
drew his revolver, and said “Drop that knife.” This version is cor¬ 
roborated by the affidavit of Mrs. Stewart filed herein, almost word 
for word. It is also supported by the testimony of Amerigo Lauro, 
who was in the hotel at this time, and who happened to glance in the 
pantry just in time to see Jovansen pick up the knife, and to see 
Price subsequently draw his revolver. 

The following is Jovansen’s version of the occurrence: 

Q. What happened when he came to the hotel? 

A. My No. 1 boy was in charge of the dining room and said 
to me “No good, no can.” I said “ What is it?” I had given the boy 
instructions that no ladies of ill fame should be served in my place. 
The boy came from the Astor House, and he said he knew the lady. 
I told him to ask Mr. Price to take the lady to another place in the 
greenhouse; he said he would not; the boy said “the manager says 
‘no can.’ ” He insisted on being served and wanted to see the man¬ 
ager. The boy said “No can, manager no have.” The lady came 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 89 

into the barroom where she had seen me and began to use bad 
language toward me. I said nothing, but kept quiet. Mr. Price 
came from the dining room through the pantry and saidWhat 
is up here?’’ My Price began to use bad language, called me all 
kinds of names, insulted me as much as he could. I kept quiet; I 
said he was to take her to his own place as I wished to keep my place 
respectable. He kept on insulting me and said ‘‘Will you serve me 
or not?” He pulled out a revolver; I got frightened; then the lady 
came and also pulled out a revolver—two against me. So I got hold 
of the table, got my hand on a bottle, dropped the bottle hiding 
myself under the table; I screamed for assistance. 

Jqvansen’s testimony is supported in all its essential features by the 
testimony of Tung Yang, No. 1 coolie at the hotel, of Ah-Dow, barroom 
boy, of ChangZsouisung, No. 1 bar boy, and of FohSun,the No. 1 dining 
room boy. The Chinese boys did not see the woman draw a revolver, but 
they all testified that Price was the aggressor; that Price entered the 
pantry threatening Jovansen and undertook to draw from his hip pocket 
a revolver, which fell to the floor. He immediately picked it up and 
pointed it at Jovansen’s face, and, at the same time cursing Jovansen 
and calling him bad names. All of the Chinese boys testified that 
Jovansen had neither a bottle nor a knife in his hand, but that in his 
fright he knocked the bottle over and ^pilt on his clothes the oil it 
contained. The testimony also showed that after the occurrence 
terminated Price and the woman left the hotel, and upon the request 
of the woman Price gave her his revolver. The policeman thereafter 
found another revolver in the carriage. The two revolvers are before 
the court as exhibits in his case. The testimony indicates that the 
revolvers were not loaded at the time of the occurrence. This is sub¬ 
stantially the testimony in the case. 

In order to give proper weight to the evidence before the court, it 
is necessary to take into consideration the circumstances surrounding 
the case, the manner and disposition, as well as the character and 
interests of the witnesses. The trial disclosed the fact that Jovansen 
is an ignorant, timid man of excitable temperament. The accused 
and his companion are intelligent persons, and it can hardly be said 
that they are of a timid or retiring disposition. Jovansen remained 
in the pantry during the entire episode, and pursued the natural, 
reasonable, and proper course. On the other hand, the accused and 
his companion upon being apprised why they would not be served, 
proceeded to the rear of the hotel and picked a quarrel with Jovansen. 
Under all the circumstances, it is highly improbable that Jovansen 
offered any serious resistance. Had Jovansen been a bold, rough 
man, and had he proceeded to the dining room where the accused 
was sitting and ordered him and his companion off the premises in 
an ungentlemanly manner, then there would have been some warrant 
and reason for the attitude which Price says he took in this matter. 
The testimony of Signor Lauro is so meager, and yet so specific and 
certain on the point it covers, as to deprive it of weight. 

Taking into consideration the evidence adduced at the trial, the 
manner, character, and interests of the witnesses, and all the circum¬ 
stances surrounding the case, there is no doubt in the mind of the 
court that the accused, S. R. Price, and his companion, Mrs. Anna 
Stewart, became incensed at the action of the servants of St. George’s 
Hotel in refusing them refreshments, and that said Mrs. Stewart took 


90 


CHAEGES AGAINST JUDGE LEBBEUS R. WILELEY. 


the matter in her own hands, and proceeded through the bar-room to 
the pantry, where she quarreled with Jovansen, and that thereupon 
the accused followed her and took up her quarrel and, without provo¬ 
cation or justification, drew his revolver and pointed it at the face of 
Jovansen, abusing and threatening him and putting the said Jovansen 
in great fear of bodily harm. 

The fact that the revolver was unloaded does not change the 
aspect of the case. It is a well-settled principle of law that There 
is no need for the party assaulted to be put in actual peril, if only a 
well-founded apprehension is created, for his suffering is the same in 
the one case as in the other, and the breach of the peace is the same. 
To illustrate: If within shooting distance one menacingly points at 
another with a gun, apparently loaded, yet not in fact, he commits 
an assault the same as if it were loaded. There must be some power, 
actual or apparent, of doing bodily harm, but apparent power is 
sufficient.(Bishop’s New Criminal Law, vol. 2, sec. 32). In a 
Scotch case, the judge in delivering the judgment of the court, 
used the following language: ^‘The presenting of a pistol, even if it 
were not loaded, providing the party at whom it was presented 
supposed it to be loaded, was undoubtedly in law an assault. ” (Mor¬ 
rison case, 1 Broom, 394, 395.) It is not the secret intent of the 
party, nor the undisclosed fact of his ability or inability to commit 
a battery that is material, but what his conduct and the attending 
circumstances denote at the time to the party assaulted. If to him 
they indicate an attack, he is justified in resorting to defensive action. 
It is the outward demonstration that constitutes the crime. 

The court therefore adjudges the said accused, S. R. Price, guilty 
as charged in the complaint, namely, that on July 24, A. D. 1906, 
in the city of Shanghai, China, with a dangerous weapon, to wit, a 
.32-caliber automatic Colt’s revolver, in and upon one A. Jovansen, 
did willfully make an assault by pointing the said revolver at the 
said Jovansen in a threatening manner, and by so pointing the said 
revolver at the said Jovansen did put the said Jovansen in great fear 
of bodily harm contrary to law; and sentences said S. R. Price for 
the commission of said crime to six months’ imprisonment in the 
jail of the American consulate at Shanghai; said sentence to begin 
on the 18th day of January, 1907. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 

Shanghai, January 18,1907. 

United States court for China. 

United States of America v. C. A. Biddle, obtaining money under 
false pretenses. 

JUDGMENT. 

Mr. A. Bassett, district attorney, prosecuted, while Mr. Hays, of 
Messrs. Ellis and Hays, appeared for the defense. 

The information in this case charges C. A. Biddle with obtaining 
under false pretenses 3,000 taels from Woo Ah Sung, Zung Yu Dong, 
Ng Sih Yieh and Sz Yung on or about October 31, 1906, in Shanghai, 
China. ^ . 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


91 


The undisputed facts in this case are as follows: 

On the 24th day of May, 1906, said C. A. Biddle received from the 
municipal council of the international settlement, Shanghai, a com¬ 
munication informing him that Chinese gambling would not be al¬ 
lowed in the future in Shanghai. Five days later, on May 29, said 
C. A. Biddle entered into a contract with a company called the Yik 
Che Company, rnade up of the four Chinese named in the information 
in this case. Said contract read^ as follows: 

Contract entered into between C. A. Biddle and Yik Cbe, whereby the said C. A. 
Biddle agrees to let during the four days of the autumn race meeting of 1906, the whole 
of the second floor and veranda of the building, Nos. 4 and 5 Mohawk road, for the 
puipose of running Chinese tables, for the sum of 6,000 taels, fifteen hundred taels of 
which to be paid on the signing of this contract by the said Yik Che as bargain money, 
the balance to be paid on or before the 1st day of November, 1906. 

This contract to be null and void should the municipal authorities prohibit the run¬ 
ning of the said building as a Chinese grand stand during said race meeting and the 
above-mentioned fifteen hundred taels bargain money to be returned to the said Yik 
Che. 

Signed at Shanghai, this 29th day of May, 1906. 

(Signed) C. A. Biddle. 

Witness—(Chinese chop). 

This contract includes one thousand invitation tickets for the four days of the 
above-mentioned race meeting. 

(Signed) C. A. Biddle. 

The bargain money, 1,500 taels, was paid at the time of the signing 
of the contract and the balance was paid during the following October. 
The 3,000 taels, referred to in the information, was paid between 
October 26 and November 1. This 3,000 taels was in payment 
of the final amount called for in the above-mentioned contract. No 
portion of the money received by Biddle under the contract had been 
returned to the Yik Che Company at the date of filing the information 
charging him with the crime of obtaining money under false pretenses. 
On the 31st of October the accused addressed a petition to the munic¬ 
ipal council asking for a confirmation or a revocation of its previous 
order prohibiting Chinese gambling, and in response thereto on 
November 1 he received a reply confirming the previous order of 
the council. Among the witnesses summoned for the defense was 
Mr. E. Jenner Hogg, of Shanghai, the owner of a plot of land near 
the Hotel Metropole, which land he had rented to Chinese during the 
race period for a number of years. Mr. Hogg had entered into a con¬ 
tract with certain Chinese to rent his property for Chinese gambling 
during the autumn races of 1906. On the 26th day of October, Mr. 
Hogg telephoned Mr. Leveson, secretary of the municipal council, on 
the subject of the resolution passed by the council prohibiting 
Chinese gambling. On or about October 26, Mr. Murray took the 
accused to see Mr. Hogg on the subject of the telephone conversation, 
and Mr. Hogg told him that he had taken the matter up with the 
council and had been informed officially that Chinese gambling 
would not be permitted. After receiving this information, the ac¬ 
cused accepted the 3,000 taels referred to in the information. Chinese 
gambling was not allowed during the autumn races. The defense has 
relied upon the proposition that this whole transaction was entered 
upon and executed in good faith by Mr. Biddle, without any intention 
on his part to swindle or cheat the Chinese in question or to obtain 
their money under false pretenses. In support of this contention 
four witnesses have been introduced to testify on four points. 


92 


CHAEGES AGAINST JUDGE LEBBEUS B. WILFLEY. 


The first was the accountant, Mr. Leake, who introduced the books 
of the Hotel Metropole Company for the purpose of showing that this 
transaction was between the Hotel Metropole Company and the 
Yik Che Company, and that the money collected had been paid into 
the treasury of the hotel company. The books were produced in 
evidence and a casual examination of them showed that there had 
been an erasure and a subseq^uent entry in ink of the amount of 
money involved in the transaction on which this prosecution is based. 
It is evident that the entry was not made in the usual course of busi¬ 
ness. The natural inference one would draw from an examination 
of the books is that the entries were made for a special purpose, and 
that the money was passed in the treasury of the company as an 
afterthought if, indeed, it entered it at all. Mr. Von Bibra, the assist¬ 
ant manager of the Metropole, was put on the stand to testify as to what 
action the company took in this transaction. He stated that he 
was present at the meetings of the board of directors of the company 
and kept a record of the minutes of the board. No communication 
on the subject of this contract between Biddle and the Chinese was 
made for nearly six months after it was signed, and the board never 
ratified the contract. The records of the board showed that on 
November 3, 1906, it considered a communication which had been 
received from the municipal council on November 1 relating to the 
prohibition of gambling on the' hotel premises and in the Mohawk 
road building, which had been leased from the Shanghai Race Club 
by Mr. Biddle and subsequently rented to the Yik Che Company for 
Chinese gambling purposes during the autumn races. Mr. Von 
Bibra stated that the records of the meetings of the directors of the 
Hotel Metropole Company contained no mention of the contract 
with the Chinese, and no mention of a receipt of money under the 
contract or of a proposition to return the money that had been paid 
pursuant to the terms thereof. The conclusion is that this contract 
was between Mr. Biddle personally and the Chinese, and not between 
the hotel company and the Chinese. 

A woman by the name of Eleanor Stevens was next introduced to 
show that the Chinese understood the situation at the time the con¬ 
tract was entered into. She stated that she was a single woman; 
that she took her meals at the Hotel Metropole, and that she was 
a special friend of the accused and had been dining with him privately 
in a private dining room of the Hotel Metropole for over a year. She 
stated that one of the parties to the contract approached her on the 
subject of inducing Mr. Biddle to enter into a contract with them. 
That thereafter, on a certain evening, in one of the private dining 
rooms of the hotel, when no one was present except herself, the 
accused, and a Chinese boy who was a member of the Yik Che Com¬ 
pany, the following conversation took place: 

A. Mr. Biddle said to the No. 1 boy that he had received a letter from the munic¬ 
ipal council in regard to gambling and they might make “bobbery” (trouble), but 
he did not think so. 

. The No. 1 boy smiled and bowed in a way that looked to me as if he did not think so. 

Q. It is quite distinct in your recollection that Mr. Biddle told this No. 1 boy he 
had received a letter from the municipal council? 

A. Yes; it is. 

On cross-examination the fact was discovered that only that part 
of the conversation of the evening which related to the contract 
between Biddle and the Yik Che Company was recalled by witness. 


CHAKGES AGAINST JUDGE LEBBEUS E. WILFLEY. 


93 


She remembered this part of the conversation, however, and was able 
to reproduce it in exact terms, word for word. The language of the 
witness on this point corresponds exactly with the testimony of the 
accused. In view of the character of the witness as disclosed by the 
evidence and by her appearance on the stand, and the circumstances 
surrounding the case, the testimony of this witness is entitled to no 
consideration. It is clearly • manufactured for the occasion. The 
only feature of the transaction which tends to show that there was 
any question in the minds of the parties to the contract on the sub¬ 
ject of the prohibition of Chinese gambling is the clause in the con¬ 
tract which provides for the return of the money in the event gam¬ 
bling was prohibited before the date of the autumn races. While this 
might have been inserted in the contract by Biddle in good faith, it 
might on the other hand have been put in for the purpose of allaying 
any apprehensions which might have arisen in the minds of the 
Chinese. The latter course would not be inconsistent with the theory 
that his purpose was to swindle and cheat the Chinamen from the 
outset. The purpose of the accused, however, was disclosed by his 
subsequent conduct. It appears from the mouth of his own witness, 
Mr. E. Jenner Hogg—and it must be said that Mr. Hogg gave the 
appearance of being a straightforward, truthful man—that about 
October 26 he had received a communication from the secretary of 
the municipal council to the effect that future Chinese gambling 
would be prohibited. Mr. Biddle states that between the 26th and 
29th or 3Qth of October he collected the last 3,000 taels of the money 
called for by the contract in this case. On October 31 he himself took 
the matter up with the council again, and received on November 1 
a final communication from the council on the subject. Nevertheless, 
during this whole period from October 26 to November 1 no intima¬ 
tion was given by Mr. Biddle to the members of the Yik Che Com¬ 
pany of the information he had received from the municipal council 
on the subject of Chinese gambling, nor did he take any steps to 
return the money after November 1, the date on which he himself 
received a final communication from the council confirming its reso¬ 
lution of May 24 prohibiting Chinese gambling in the future. No 
part of the money was returned at any time. It should be said that 
Mr. Hogg, upon receiving the information above referred to, imme¬ 
diately canceled his contract with the Chinese tenants and returned 
the money which they had paid him. 

The testimony of Mr. Hogg and the subsequent action of Mr. Biddle 
put at rest the only question that could arise on the subject of intent. 
Even if the accused entered upon the contract in the hope that 
Chinese gambling would be permitted to continue, his subsequent 
actions demonstrated that he meant to induce the Chinanien to pay 
the 3,000 taels in question, well knowing that it would be impossible 
for him to carry on his portion of the contract. The Chinese wit¬ 
nesses testified that he represented to them at the time the 3,000 
taels were paid that Chinese gambling would be allowed, and that 
they relied upon his representations. 

In view or the whole of the testimony and of the manner and 
character of the witnesses, the court is convinced that the testimony 
of the Chinese witnesses is true and that the Chinese entered into the 
contract relying upon the statements of the accused, who knowingly 
made false representations to them for the purpose of obtaining the 
money in question. 


94 


CHAKGES AGAINST JUDGE LEBBEUS K. WILELEY. 


The court therefore finds the accused, C. A. Biddle, guilty of the 
offense as charged in the complaint, and sentences him to one year’s 
imprisonment in the Shanghai jail. 

(Signed) L. R. Wilfley, 

Judge of the United States Court for China. 
Shanghai, March 16, 1907. 


March 2, 1908. 


Sir: I have received and read your report of February 29 upon 
the charges submitted by Lorrin Andrews under date of November 
19, 1907, against Judge Wilfley, it appearing from your report that 
Congressman Waldo stands sponsor for these charges. I cordially 
concur, in your finding, which is to the effect that Judge Wilfley is 
not only innocent, but is attacked solely because of the fearlessness 
and integrity with which he stamped out vice and crime in Shanghai. 

I inclose you a letter from Robert E. Lewis, secretary of the Inter¬ 
national Committee of the Young Men’s Christian Association, who 
has just returned from Shanghai, China, where he has resided for 
ten years as foreign secretary of that body. This letter is in line 
with the quotations contained in your report, and the statements 
therein made in reference to the character and conduct of Judge 
Wilfley and his accusers are borne out by the statements of every 
reputable man, whether business man, missionary. Government 
agent, or representative of a philanthropic or religious body, who has 
written to me. It is clear that Judge Wilfley has been attacked not 
because he has donn evil, but because he has done good. The assault 
on him is simply an impeachment of decency and zeal for the public 
good, and if successful would tend to cow and discourage every honest 
public servant who dares to withstand the forces banded together 
for evil, and would do grave damage to the honor and interest of our 
country in the Orient. If the attack were to succeed, the benefi¬ 
ciaries would be every keeper of a house of prostitution, every swin¬ 
dling lawyer, every man who lives by blackmail and corruption, in 
the cities of the Far East. These are the people whose hopes have 
been revived by the effort to overthrow this upright and fearless 
judge, who has already done so much for the good fame of America 
in China. It is not too much to say that this assault on Judge 
Wilfley, in the interest of the vicious and criminal classes, is a public 
scandal. 

I cordially approve your conclusions. 

Sincerely, yours. 


Theodore Roosevelt. 


Hon. Elihu Root, 

Secretary of State. 


[Memorandum for Secretary Root.] 


IN THE MATTER OF THE CHARGES OF LORRIN ANDREWS AGAINST JUDGE 
L. R. WILFLEY, OF THE UNITED STATES COURT FOR CHINA. 

The within papers contain what purport to be charges against the 
official conduct of Judge L. R. Wilfley, of the United States court 
for China, and a request for his removal from office. 


CHARGES AGAINST JUDGE LEBBEUS E. WILPLEY. 


95 


They are signed by one individual, Lorrin Andrews. Mr. Andrews 
is an American citizen and a resident of Shanghai, and a member of 
the bar of the United States court for China, having taken the exam¬ 
ination and qualified under the rule in June of last year. 

The petition shows that disbarment proceedings are now pending 
against Mr. Andrews in the United States court for China. 

Mr. Andrews claims to speak for himself and in behalf of various 
other American citizens who reside in Shanghai, but the papers 
herein liontain no evidence that he has authority to represent any¬ 
one but himself. 

Since the organization of the United States court for China it has 
been the practice of the clerk of the court to forward to this Depart¬ 
ment a complete record of all that transpires in court. The district 
attorney has just filed with the Department a full statement cover¬ 
ing the work of the court for the past year, accompanied by com¬ 
plete copies of judgments and records. Judge Wilfley has also from 
time to time reported to the Department the situation in China and 
a full account of the work of the court, so that the Department is 
familiar with eyery phase of this work since the date of its organiza¬ 
tion. 

The charges are seven in number and are as follows-: 

First Charge: The first charge is based on rule of court No. 1, 

P romulgated by Judge Wilfley-upon the inauguration of the court in 
hanghai in December of last year. The rule relates to the admis¬ 
sion of lawyers to the bar, and provides that all American lawyers 
who wish to be admitted to the bar shall qualify by standing an 
examination given by the court and furnishing satisfactory certifi¬ 
cates of moral character. 

Mr. Andrews was in Washington about a year ago and complained 
against this rule of the court and sought to have it reversed by an act 
of Congress. He afterwards returned to Shanghai, submitted to the 
rule, took the examination, and was admitted to the bar. 

It has been well settled by the rules and practice of common-law courts that it rests 
exclusively with the court to determine who is to become one of its officers, as an 
attorney or counsellor, and for what cause he ought to be removed. (See Ex parte 
Secombe, 19 Howard, p. 9, at 13.) 

In enforcing such a rule Judge Wilfley only exercised the right 
which in the absence of statute lawfully inheres in all courts of the 
United States. 

The rule adopted was made necessary by the peculiar conditions 
which confronted the court in Shanghai and other treaty ports in 
China. For a long time these treaty ports have been favorite resorts 
for adventurous and irresponsible lawyers. Had the court admitted 
applicants upon the presentation of certificates of admission from the 
courts of last resort in the States from which they came or from the 
Federal courts of the United States all of the American lawyers in 
China would have been entitled to enrollment. This would have 
discredited the court at the very outset in the eyes of the Chinese 
people and of the people of the other Western powers operating in 
China, and it would have been fatal to its usefulness. Everyone 
who was familiar with conditions in China knew that there were a 
large number of American lawyers in the treaty ports of China when 
the court was organized who by reason of their lack of knowledge of 
the law and lack of character were not fitted to perform the duties of 


96 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


the office of attorney at law. It has been suggested that they might 
have been admitted and afterwards eliminated by disbarment pro¬ 
ceedings. This course, in addition to discrediting the court in the 
eyes of the people, would have taken years of its time and would have 
yielded unsatisfactory results. 

Complaint is also made that lawyers of other nationalities were 
admitted to the American bar without examination. This was done 
as a matter of courtesy. The American court has no jurisdiction 
over attorneys of other nationalities and does not license them to 
practice in China. Instead of requiring foreign practitioners to 
ask permission to appear as counsel every time they had a case in 
court they were simply enrolled permanently. Their names may be 
stricken from the rolls any time without disbarment proceedings. This 
rule enables American lawyers to practice in British and other foreign 
courts without taking an examination and on the whole operates 
advantageously to them. 

Mr. Andrews states that he and his partner had pending in the con¬ 
sular and other courts at Shanghai some 30 cases at the time the 
court was organized. This statement is not borne out by the records. 
The records of the courts at Shanghai show that on the 2d of January, 
1907, the date of the opening of the first term of the court, the firm of 
Brooks & Andrews were counsel in two small civil cases and one crimi¬ 
nal case in the United States court for China, and were counsel of rec¬ 
ord in no case pending in the Shanghai consular court. The criminal 
case was for assault and the civil cases were afterwards dismissed. 

The court is also charged with refusing applicants permission to 
see their papers after the examination closed. The judge had a per¬ 
fect right to do this if he saw fit, but as a matter of fact no such course 
was pursued. The examination papers have always been available to 
applicants, and the records show that one of the rejected lawyers has 
applied for and taken copies of his answers given at the examination. 

Under the rule examinations are held every six months in Shanghai, 
and examinations have also been held in Hankau and Tientsin. The 
records show that during the year the court has been in operation 15 
American lawyers have applied for admission to the bar, 6 of whom 
have been rejected, and 9 nave qualified. One of the most significant 
results of the establishment of the rule has been that a number of the 
worst lawyers in China have been deterred from applying for admis¬ 
sion at all. On the other hand young men of unquestionable charac¬ 
ter of other jurisdictions have been encouraged to come to China to 
engage in the practice of the law. 

Second Charge: The second charge states that Judge Wilfley 
has permitted Mr. Arthur Bassett, district attorney for the United 
States court for China, to act as counsel for private parties in several 
cases. This Mr. Bassett had a perfect right to do under the law, and 
in doing this he followed the practice that is universal in the United 
States. However, Mr. Bassett only took civil business for the period 
of three months after the court was organized. Since that time, 
inasmuch as complaint was made and because his official duties have 
demanded all of his time he has declined all civil business that would 
take him into court. 

Third Charge: The third charge states that Judge Wilfley has 
charged the petitioner and other members of the former Shanghai 
bar with being disreputable practitioners and unworthy to practice 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 97 

their profession, and has urged the publication of articles in the public 
press which said judge knew to be false and untrue. This charge 
relates to conduct that is wholly unofficial. Judge Wilfley has re¬ 
peatedly informed the Department in writing that he has not in any 
way attempted to influence the attitude of the newspapers with refer¬ 
ence to the work of the court. That he has made the statement in 
private conversation that a large part of the former Shanghai bar was 
unworthy- to practice their profession is probably true. It is highly 
improbable that he made that remark about the petitioner herein, 
because the records of the Department show that the case of Lorrin 
Andrews has received the most careful consideration of the court from 
the beginning. 

Fourth Charge: The fourth and main charge contained herein 
states that Judge Wilfley has instituted disbarment proceedings 
against the petitioner, Lorrin Andrews, and has cited him to show 
cause why he should not be punished for unprofessional conduct. 
The petition shows that these proceedings are now pending in the 
United States court for China. In view of this fact and the further 
fact that these proceedings are of purely judicial character it would 
be highly improper for the Executive branch of the Government to 
interfere or express an opinion in regard to the merits of the matter. 
There can be no doubt that it is the right and duty of the court to 
institute such proceedings against any member of its bar where the 
facts warranting such a course are brought to its attention. Mr. 
Andrews complains that he was denied immediate hearing in this 
case. The records show that Mr. Andrews was responsible for the 
delay of which he complains. In his answer to the charge he 
demanded that he be confronted with the testimony of one Bert 
Schlesinger, of San Francisco, Cal., before he be disbarred on the 
charges contained in the citation. In response to this demand the 
court ordered that a commission issue for the taking of the deposition 
of said Bert Schlesinger. It is the taking of this deposition that 
caused the delay that Mr. Andrews complains of. 

Fifth Charge: The fifth charge states that Judge Wilfley was 
guilty of irregularities in three matters which came before the court 
for judicial determination as follows: 

First. It is claimed that in June of last year an order was issued 
commanding an American citizen to appear before the British 
supreme court at Shanghai and submit to the jurisdiction of that 
court, contrary to his rights under the law. The facts in this matter 
are as follows: The British supreme court at Shanghai, in two actions 
before it, to declare one J. Beavan, a British subject, a bankrupt, hav¬ 
ing affidavits that said Winklebach, representing himself as manager, 
had possession of much building material for said Beavan, requested 
the United States court for China to issue a summons to answer in 
said actions to be served upon said Winklebach. The clerk of the 
court, in conformity with the usual custom which prevails among the 
courts in the international settlement at Shanghai, issued the sum¬ 
mons to Winklebach in response to the request of the British supreme 
court. It was done as a matter of courtesy and comity. It frequently 
happens in Shanghai that in the trial of cases it becomes necessary 
to subpoena citizens of other nations as witnesses, and since the 
courts of one nation have no jurisdiction over the nationals of another 

29865—08-7 


98 


OHAEGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


it becomes necessary to apply to the court of the nationality of the 
foreign witness, and ask that it subpoena the witness desired. This 
is invariably done as a matter of comity. The act here complained 
of was done by the clerk of the court in the usual course of business 
and was never brought to the attention of the court, nor was any 
complaint ever made by Mr. Winklebach to the court on account 
of the clerk’s action. 

Second. The second matter referred to in charge five relates to the 
appointment of a receiver for the institution known as the “Owl 
Grill Kestaurant,” which was operated by one R. F. Daly. The 
petition seeks to make the point that Daly was not given an oppor¬ 
tunity to have his case properly presented in court, and that his prop¬ 
erty was taken without trial, and that he was turned out into the 
streets penniless. The records show that Daly was present when the 
court heard the application for the appointment of a receiver, and 
that the court inquired with great care into all of the facts of the case 
before the receiver was appointed. The receiver was put under a 
heavy bond. Thereafter there was another complete hearing in 
which the whole matter of the relationship between the parties in 
interest was gone into by the court. The records show that after the 
receiver was appointed Daly was represented by the law firm of 
Jernigan and Fessenden, and that the work of the receiver and the 
winding up of the business of the concern received the constant and 
careful consideration of the court. The records also show that after 
the business was wound up Daly appeared in court in person and by 
counsel and stated that the final settlement had been made in a man¬ 
ner altogether satisfactory to himself, and he signed a document to 
that effect. This statement was made in open court by Daly himself. 

Third. The third matter referred to in charge five is that in the 
case of Getz Brothers v. Friede, Friede was not given an opportunity 
to be heard. The records in this case show that Friede was repre¬ 
sented by a British attorney by the name of Home. Friede did not 
appear at the trial, but left China before the case was called for hearing. 
His attorney appeared and asked for a continuance on account of the 
absence of his client. The court after hearing the argument over¬ 
ruled the motion for continuance on account of the fact that the agent 
of the Getz Brothers had come to Shanghai and remained there for a 
long period at a great expenseJor the sole purpose of giving testimony 
in this case. The testimony of the representatives of Getz Brothers 
was taken by the court. A commission for the taking of the testi¬ 
mony of Friede, who was then in the United States, issued upon the 
completion of the taking of the testimony of the Getz Brothers. A 
transcript of the defendant’s testimony was made out and copies 
furnished to counsel for both plaintiff and defendant. The plaintiff 
was notified by cable of the foregoing facts and his cable replies show 
that he received the notification. The place for the taking of Friede’s 
deposition was fixed at St. Louis, Mo., because that city is situated 
about half way between New York, the home of Friede, and San 
Francisco, the home of the Getz Brothers. Friede did not avail 
himself of the opportunity to give testimony in this case, but left the 
United States for Europe before the date set for the taking of his 
testimony. The records also show that the judge himself informed 
Friede in Yokohama in July, 1906, that his case against Getz Brothers 
would be heard in the following November or December. It thus 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


99 


appears that Friede left the Orient knowing when his case would be 
called for trial at Shanghai, and that he left the United States after he 
had full information that the commission had been issued to enable 
him to give his testimony in St. Louis, Mo. It should be noted in 
this connection that these cases are judicial matters in which error or 
rnistakes on the part of the court are reviewable by the United States 
circuit court of appeals for the ninth circuit. 

Sixth Charge: The sixth charge complains that the court disre¬ 
garded the rights of an American citizen by the name of Price by 
reusing him bail after conviction and pending appeal. The facts in 
this case are these: S. R. Price was convicted on the charge of assault 
with a deadly weapon and sentenced to six months in the Shanghai 
jail. His attorney gave notice of appeal and asked that Price be 
released on bail. The appeal was granted and bail refused. It is 
this action of the court to which exception is now taken. 

The records show that the court was of the opinion that the appeal 
was based on frivolous and unsubstantial grounds and taken for the 
purpose of delaying and defeating justice, and it thereupon exercised 
the right given it by the law creating the court to modify the rules 
of procedure then in force. The act establishing the court provides 
that the procedure already in force in the consular courts shall be 
the procedure in the United States court for China, provided, how¬ 
ever, ^‘that the judge of the said United States court for China shall 
have authority from time to time to modify and supplement said 
rules of procedure.’’ 

Section No. 66 of the regulations, of the minister, which was in force 
on the date of the organization of the court, is as follows: 

Section 66. After conviction and appeal the •prisoner may be admitted to bail only 
by the minister. 

This rule was modified to read as follows: 

After conviction and appeal the prisoner may be admitted to or refused bail in the 
discretion of the court. 

The intention of Congress in this matter is evident by section 4095 
of the Revised Statutes of the United States, which is as follows: 

When any final judgment of the minister to China or to Japan is given in the exer¬ 
cise of original or of appellate criminal jurisdiction, the prisoner charged with the crime 
or offense, if he considers the judgment erroneous in point of law, may appeal therefrom 
to the circuit court for the district of California; but such appeal shall not operate as 
a stay of proceedings, unless the minister certifies that there is probable cause to grant 
the same, when the stay shall be such as the interests of justice may require. 

It will thus be seen that the ruling of the court refusing Price bail 
has ample warrant in the regulations of the minister, which have 
the force of law, and in the Revised Statutes passed in aid of the 
treaties, and to those who are familiar with the situation in China the 
reason for this regulation of the minister and the provision of law is 
not far to seek. A release on bail in China is tantamount to a per¬ 
manent release. There are no extradition treaties applicable to 
Americans in China. There is not even authority for returning a 
fugitive from justice from the United States. When once one escapes 
from the jurisdiction of the court, which is a very easy matter, there 
is no way, as the law now stands, to have him brought back. These 
conditions were known to the minister and to Congress, and this 
accounts for the regulation of the minister and of the act of Congress 
upon which the rule of the court was based. 


100 CHARGES AGAINST JUDGE LEBBEUS R. WlLFLEY. 

This action has been designated as an outrage and a violation of 
the rights of American citizens. As a matter of fact, it conforms to 
the practice prescribed by the statutes in many of the States of the 
Union at the present time. A celebrated case in point is that of 
ex-Mayor Schmitz in San Francisco. After conviction he made 
application to be released on bail, which was refused by the San Fran¬ 
cisco courts. Schmitz was kept in confinement pending appeal, and 
afterwards the judgment of the trial court convicting him was reversed 
by the appellate court. 

Seventh Charge: The seventh charge states that at the trial of a 
Filipino by the name of Victorino Torres the judge permitted District 
Attorney Bassett to act as interpreter. The facts in this case were 
as follows: Victorino Torres was tried on the charge of raping a 
Chinese girl. Substantially all of the testimony was taken in Eng¬ 
lish. Occasionally in the course of the trial it was difficult for the 
accused to express himself in English and he resorted to the use of 
the Spanish language. This was understood in the main by the 
judge, who for five years had lived in the Philippine Islands. In a 
few instances, however, the court was unable to understand the wit¬ 
ness clearly, and District Attorney Bassett aided in the interpretation 
of certain difficult expressions which were not clear to the court. 
Torres was represented by counsel, who made no objection to this 
procedure. As a matter of fact, most of the testimony was taken in 
English. 


SUMMARY. 

From the foregoing it appears that the salient facts in connection 
with the so-called charges contained in the within petition are as 
follows: 

First, (a) The petition is signed by a single individual against whom 
disbarment proceedings are now pending in the United States court 
for China. 

(b) The petitioner has complied with the rule of court relating to 
the admission of lawyers to the bar of which he complains and is now 
a member of the bar of the United States court for China. 

(c) In enforcing the rule the court acted within its legal rights. 

(d) The rule in question was made necessary by the peculiar condi¬ 
tions which confronted the court in China at the date of its organi¬ 
zation. So many adventurous and irresponsible lawyers had fiocked 
to the treaty ports of China during recent years that had the court 
admitted all or them to the bar upon the presentation of certificates of 
admission to the various courts of the United States, it would have 
had the effect of discrediting the court in the eyes of the Chinese 
people and in the eyes of the people of the other w^estem nations 
doing business in China. 

(e) At the date of the opening of the court the firm of Brooks & 
Andrews had only two small civil cases, afterwards dismissed, and 
one criminal case pending in the United States court for China. 
They were counsel of record for no cases pending in the consular 
court at Shanghai. 

(/) Fifteen lawyers have applied for admission to the bar in China, 
nine of whom qualified. A number of the worst American lawyers in 


CHABGES AGAINST JUDGE LEBBEUS K. WILELEY. 


101 


the treaty ports have been deterred from applying for admission at 
all, and good lawyers of unquestionable character from other juris¬ 
dictions have been encouraged to come to China to practice law. 

Second. District Attorney Bassett took civil business for a period 
of about ninety days after the court was opened. This was permitted 
by the law and conformed to the practice universally in force in the 
United States. By reason of complaint having been made and by 
reason of his heavy official duties he has since refused all civil business 
that would take him into court. 

Third. The third charge contains nothing that relates to the 
official conduct of Judge Wilfley. 

Fourth. The disbarment proceedings complained of by the peti¬ 
tioner which constitutes his real grievance are still pending and are 
wholly of a judicial nature, hence can not be considered by the execu¬ 
tive branch of the Government. 

Fifth. The fifth, sixth, and seventh charges relate to the trial of 
certain causes which have been before the court. The parties in 
interest in these causes have not signed the within charges, and there 
is no evidence to show that they are in anywise dissatisfied with the 
manner in which the cases were disposed of. Furthermore, an 
appeal lies from all final judgments, orders, and decrees of the United 
States court for China to the United States circuit court of appeals 
for the ninth circuit. 

Sixth. The within petition in substance is nothing more nor less 
than a statement of a grievance of a single Shanghai lawyer against 
the judge of the United States court for China because said judge has 
cited him to show cause why he should not be punished for unpro¬ 
fessional conduct. Instead of relying upon the judicial determina¬ 
tion of the issues involved in said proceedings this is an effort on the 
part of the respondent to subject the judge to a trial by the executive 
branch of the Government. 

The records show that the other so-called charges contained in 
said petition are frivolous and without foundation. 

To the President: 

I return herewith the paper submitted to you by Lorrin Andrews 
under date of November 19, 1907, entitled ‘‘Charges against Lebbeus 
B. Wilfley, judge of the United States court fc>r China, and petition 
for his removal from office,’’ together with my opinion thereon pur¬ 
suant to section 2 of Article II of the Constitution. 

A copy of the charges was sent to Judge Wilfley for such explana¬ 
tion or remark as he had to make, but before the paper could reach 
China he had left for the United States and did not receive any copy 
of the charges until he reached Washington on or after the 13th of 
January. On the 30th of January Judge Wilfley handed me a 
memorandum regarding the charges, a copy of which I transmit 
herewith. 

On the 20th of February, after examining the copies of the records 
and official reports relevant to the subject I notified Mr. Andrews 
that I would consider any further statements or proofs which he 
wished to submit and would hear any oral statements that he wished 
to make, on a specified day. He replied, through the Hon. George 
E. Waldo, that he would be otherwise engaged on that day, without, 
however, asking that another time be set. Nevertheless, I did set 


102 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


another day and gave Mr. Andrews notice through Mr. Waldo that 
I would hear him then, and received a reply that Mr. Andrews’s 
papers were before a committee of the House of Representatives— 
still without asking for any different time for the hearing. I assume, 
therefore, that no further hearing is desired, and that the matter is 
to be disposed of by you upon the papers already presented and the 
official records. 

Stripped of the epithets and expressions of feeling and opinion on 
the part of the petitioner and immaterial statements which do not 
enter into the substance, the charges are as follows: 

First. That the judge prevented six American lawyers in Shanghai 
from practicing in the United States court for China by means of 
requiring them to pass an examination as a condition of admission 
to the bar of the court. 

It appears by the charge and by the official records that at the 
opening of the court a rule was promulgated providing for an exami¬ 
nation for admission to the bar. It further appears by the records 
that during the first year of the court there were fifteen applicants 
for examination, of whom nine passed and six failed to pass. It also 
appears that the petitioner, Mr. Andrews, w’as one of those who 
failed on his original examination, but that he was allowed a second 
opportunity upon which he passed and was admitted to the bar. 

I have no doubt of the lawful authority of the judge to establish 
such a rule. It is one of the inherent powers of courts of justice to 
determine the way in which the qualifications for membership of the 
bar practicing before them shall be ascertained. The United States 
court for China was created by the act of Congress of June 30, 1906, 
as a court of record, with general original jurisdiction and extensive 
appellate jurisdiction, and there is nothing in the statute to justify 
the conclusion that this customary power was withheld. The rule 
adopted was the same as the rule which is actually in force in a 
number of American States. For example, members of the State 
and Federal bars in New York and Pennsylvania can not be admitted 
to the bar of New Jersey without passing an examination. The same 
is true of Kentucky, North Carolina, Rhode Island, Louisiana, and 
Kansas. 

I am not prepared to say that the conditions which led to the 
establishment of the new court for China and with which it had to 
deal at the outset were not such as to make it for the interest of 
justice to establish the rule followed in the States I have mentioned 
rather than some other rule. The judge who was there and knew 
the conditions, who was charged by law with the responsibility of 
inaugurating and conducting the court, and upon whom was imposed 
the duty of determining that question was probably best qualified to 
determine. Congress can change the rule by legislation, but the Pres¬ 
ident has no authority to review it. Even if you had power to review 
the decision of the court as to what would be the best rule for that 
court, and if you were to differ in opinion from the court, it would be 
idle to talk about punishing the judge because of that difference of 
opinion. 

The second charge is, in substance, that the judge permitted the 
district attorney to practice in the court without passing the exami¬ 
nation. 

It would certainly have been very extraordinary if the judge had 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 103 

refused to permit the district attorney to practice. That ofhcer had 
been appointed by the President, by and with the advice and consent 
ot the Senate, pursuant to the statute creating the court, to repre¬ 
sent the United States in trying and arguing causes in that court. 

It appears that during the first few months, when lawyers were 
few, the district attorney also appeared in private cases. During 
the latter part of the year his public business seems to have taken 
up his entire time. I suppose there are few district attorneys in the 
United States who do not also practice in private cases. There is no 
legal objection to it and no other objection unless there is interfer¬ 
ence with the public business. The only exceptions are probably to 
be found in the large cities, where the public business engrosses the 
entire time of the district attorneys. 

The third charge is that said Wilfley has by spoken and written 
words and by his actions libeled and defamed the petitioner and the 
other members of the American bar who failed to pass the examina¬ 
tion, and charged them with being disreputable practitioners, and has 
secured the publication of articles in the public press to the same effect. 

This clearly is not a charge of official misconduct, and it is no part 
of the onerous duties of the President to try libel suits against his 
appointees. Were it your duty to take cognizance of such charges 
there is not here any charge to which anyone can be called on to 
answer in any form. Without a statement of the articles charged to 
have been written or printed, so that it may be seen whether they 
were libelous, and so that the person charged may say whether he is 
responsible for them, and, if responsible, whether he maintains their 
truth, such a general charge as this is mere aspersion, upon which no 
action can properly be taken. 

The fourth charge is that Judge Wilfiey has commenced proceed¬ 
ings to disbar the petitioner upon a charge of perjury in an affidavit 
filed in the United States circuit court of appeals of the ninth circuit, 
and that before bringing such proceedings the judge had threatened 
to bring them in case this petitioner did not dissolve his partnership 
with one Brooks. 

Obviously, the question whether this proceeding ought to have been 
brought is to be determined in the proceeding itself. The petitioner 
can not be disbarred for perjury without proof of the perjury and a 
record of the proceedings against him, and upon that proof and record 
he will be entitled under the statute to the judgment of the circuit 
court of the United States for the ninth circuit. The proper answer 
to such a charge is certainly not by an attempt to remove the judge 
who directs the proceeding. Judge Wifiey informs me that it is not 
true that the proceeding was preceded by any threat, but whether it 
was or not, there would seem to be no offense involved in telling the 
person charged that it was going to be brought, and the judge might 
well have considered and stated that under circumstances looking 
toward reformation and good conduct he should refrain from bring¬ 
ing it. 

The fifth charge is that the judge misused and abused the powers of 
the court in three specified proceedings: 

1. That he ordered an American named Winklebach to appear 
before the British court for China in a proceeding pending in that 
court. 


104 CHAKGES AGAINST JUDGE LEBBEUS R. WILFLEY. 

It ajDpears that Winklebach was a necessary party in a case in which 
the British court had jurisdiction because the other defendants were 
British subjects. As the various national courts having the same 
territorial jurisdiction in China can issue process only to their own 
nationals, it has been common to issue such orders as a matter of 
comity in aid of the proceeding in the other court. If Winklebach 
considered that the order was without authority, he could have 
moved to vacate it and could have appealed. He did neither. 

2. That in the case of M. J. Connell & Co. against Daly a receiver 
was appointed of the defendant’s business as a restaurant keeper with¬ 
out granting an adjournment, for which the defendant applied. 

3. That in the case of Friede v. Getz Brothers & Co. the court 
refused an adjournment which ought to have been granted and pro¬ 
ceeded with the case in the absence of the plaintiff. 

Both of these cases are simply cases of the exercise of judicial dis¬ 
cretion, clearly within the power of the court, and as to which the 
parties had the right of review by appeal. Neither of the parties 
seems to have asked for such a review. The action certainly c^n 
not be reviewed in this way. 

The sixth charge is that the judge refused to accept bail from the 
American named Price, convicted of an assault with a deadly weapon, 
and after conviction and pending appeal. 

The judge was quite right in refusing bail, unless he considered 
that there was probable cause based upon doubt as to the correct¬ 
ness of the judgment. The new court exercises the jurisdiction for¬ 
merly exercised by the United States minister to China, and as to that 
jurisdiction section 4095, United States Revised Statutes, expressly 
provides that an appeal to the circuit court of the ninth circuit “shall 
not operate as a stay of proceedings unless the minister certifies that 
there is probable cause to grant the same, when the stay shall be 
such as the interests of justice may require.” The refusal to grant 
the bail after conviction was in strict accordance both with the letter 
and the spirit of the law. Whether the judge was mistaken or not 
in thinking that there was no probable cause can not be determined 
without a critical examination of the record, but if he was mistaken 
on that subject that is no ground for removal. The petitioner is 
mistaken in supposing that bail could be allowed after conviction as 
a matter of course. It is not so very long since there was no appeal at 
all from a criminal conviction in the courts of the United States. 
An appeal is now allowed, and properly so, but it is not yet the law 
that a conviction means nothing, and it ought not to be the law. 
This is especially true under the conditions existing in China. 

The seventh charge is that the judge permitted the prosecuting 
attorney, Mr. Bassett, to act as interpreter of the defendant’s testi¬ 
mony in a case against one Torres, a Filipino. 

There is no charge of any misinterpretation of the testimony or of 
any error or injustice in the trial. The judge himself had long lived 
in the Philippines and understands Spanish quite well; the defend¬ 
ant was represented by counsel, who asked for no regular interpreter 
and made no objection and apparently was quite satisfied to have 
the assistance of the district attorney in helping the judge to under¬ 
stand his client. Neither the defendant nor his counsel is now com¬ 
plaining. The charge seems to be finedrawn and without substance. 

Shortly before the presentation of these charges Mr. Bassett, the 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


105 


United States attorney, had mailed a report in the ordinary course 
of his duty, dated November 11,1907, which has since been received 
at the Department of State. This report contains an official statement 
of the facts regarding a large part of the matters referred to in the 
charges, and I transmit it herewith. 

There is a broader view to be taken of this petition as a whole and 
of the proceedings of the United States court for China, from wliich 
the petitioner has picked out certain details for criticism. 

There was a reason for the creation of the court, and an urgent 
reason, in the existence of conditions in Shanghai, and, to a less 
degree, in other treaty ports of China, discreditable to the United 
States and humiliating to American self-respect. The foreign settle¬ 
ment of Shanghai is itself a considerable city, with many thousands 
of inhabitants from all the western nations. In it there is no single 
tribunal which has jurisdiction for the administration of justice over 
all its inhabitants. The citizens of each nation are subject to the 
jurisdiction onl}^ of the judicial officers of their own nation and are 
exempt from interference from the judicial officers of any other 
nation. As a result of this peculiar arrangement the vice which 
seems to thrive in the atmosphere of the Orient has long tended to 
seek shelter under the flag of the country whose administration is the 
most lax and ineffective. American administration in Shanghai had 
long been notoriously lax and ineffective, and the gamblers and pros¬ 
titutes of Shanghai generally flourished under the claim of American 
citizenship and the protection of American indifference. To such an 
extent had this gone that prostitutes generally in wShanghai, and, to a 
considerable extent in the other cities, whether American or not, 
were called American girls, and the two expressions were practically 
synonymous. 

One of the principal causes urging to the formation of the new 
court was the necessity of doing away with this disgraceful condition 
of affairs. The evidence is overwhelming that Judge Wilfley has 
accomplished this work effectively and thoroughly and has cleared 
the American name from the disgrace that rested upon it. It was not 
an easy task, and it could not be done except by the stern and active 
administration of justice. Such an administration necessarily creates 
resentment and enmity. The lawyers whose most liberal clients 
have been the gamblers and prostitutes of Shanghai never com¬ 
plained of the old order of things, but they are now full of bitterness 
against the judge who has driven their clients out of business, but the 
decent and virtuous Americans in Shanghai vrere indignant and 
humiliated over the former conditions and are now grateful and 
approving. The situation is clearly and temperately stated in a 
letter dated September 25, 1907, from Mr. W. W. Lockwood, asso¬ 
ciate secretary of the Young Men^s Christian Association of Shanghai, 
to the Hon. Charles E. Watson, of Indiana, which was sent to me by 
Mr. Watson. 

Mr. Lockwood says: 

Judge Wilfley faced a very difficult condition of affairs when he established the new 
court a year ago. Things had been allowed to run loose for so long that there were those 
who believed that nothing could be done in the way of restraint. But the court was 
not of this opinion. A further difficulty was that no body of law had been laid down 
for the guidance of the court, thus rendering the work of the court most difficult and 
taxing, but an examination of the careful decisions of the court will speak for itself. 
An even greater witness to the efficient work of this tribunal is the improved condition 


106 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


of affairs as far as Americans are concerned all over China. The judge’s work has been 
in the face of the determined opposition of the forces of evil in Shanghai and the other 
places where the court sits on circuit. He, however, has the unanimous support of 
those who want to see the law enforced honestly and without partiality. The news¬ 
papers, both British and American, that speak for the community, have been unani¬ 
mous in their expression of approval of the court’s work. 

Rev. James L. Barton, corresponding secretary of the American 
Board for Foreign Missions, wrote to me from Boston, under date of 
September 18, 1907, saying: 

I have just returned to the office after having spent something like six months in 
China. * * * 

I wish also to express my great appreciation of the work of Judge Wilfley. I was in 
Shanghai, Tsintsin and Hankow, and saw with my own eyes how his work was saving 
the good name of America. The repesentatives of other powers spoke to me in high 
terms of what the judge is doing, declaring that if that work continues they would 
have to do something of the kind to protect their good names from the stain cast upon 
them by profligates who claim citizenship for the protection it gives. 

I find on the files of the Department a letter sent you by Messrs. 
Underwood & Underwood. It had been received by them from Mr. 
Edward H. Foot, manager of their eastern department. He says: 

You have very likely noticed the establishment at Shanghai of an American court 
for China. 

As to the need • The reception that I had at Shanghai when I came here before the 
establishment of the court last year to open our branch office was of this sort. “An 
American, are you? Well, the Americans furnish us our saloon-keepers and gamblers 
and run our houses of prostitution. What are you going into here? ” This was particu¬ 
larly the attitude of the Chinese, and with others it was assumed that my business was 
probably something disreputable. Reference to a woman as an American was a dis¬ 
tinct reflection on her character. 

As to the result: I returned to Shanghai in July of this year and have been here for 
several months. The attitude of the city toward Americans, and as I have felt it, has 
not merely changed; it is strikingly different. Ill no instance this year have I 
encountered the sneering reception of a year ago. So extended has been the clean¬ 
ing up or cleaning out of the tough element, considerable of which driven from 
Manila landed here, that American citizenship in Shanghai is to-day almost a certifi¬ 
cate of respectability. 

Naturally, Judge Wilfley, who organized this court, has had to meet all sorts of mis¬ 
representation and bitter opposition from the elements whose business and methods 
he has opposed. 

I find also a letter written to you June 11, 1907, by Daniel L. Rader, 
the editor of the Pacific Christian Advocate, of Portland, Oreg. He 
says: 

Before Judge Wilfley’s appearance in China the word ‘ ‘ American girl” was a stench 
and an offense to such an extent that no self-respecting American woman would allow 
herself to be called an “American girl.” 

The influence of those who claim to be American lawyers was of the most degrading 
quality. I am sure I speak advisedly when I say that these men were the greatest 
hindrance to the promotion of decency and virtue that the American missionaries, 
both men and women, encountered in the Empire. Judge Wilfley and Attorney 
Bassett found these conditions prevailing, and which were far worse than anything I 
can describe, when they arrived in Shanghai. 

******* 

Both Attorney Bassett and Judge Wilfley have gone about their work with a quiet 
dignity and an honest purpose which have brought honor to the United States Gov¬ 
ernment and credit to our people. I am sure I am speaking within bounds when I say 
that nothing which has occurred in China in the past twenty-five years has had so 
wholesome an effect as the stand taken by the officers of the United States district 
court for the district of China. 

Many other similar letters have come to the Department, and there 
has also been received a memorial communicated to you by a commit- 


CHARGES AGAINST JUDGE LEBBEUS R. WILELEY. 


107 


tee appointed at a public meeting of Americans in Shanghai and bear¬ 
ing the signatures of several hundreds of American residents, among 
whom I recognized many familiar and most highly respectable names. 
The memorial says: 

We, the undersigned American citizens residing in China, desire to put on record 
our emphatic approval of the course pursued by Judge L. R. Wilfley in the United 
States court for China. 

He has already done much to drive out of China worthless and vicious characters 
and to close up disorderly houses. His court is proving a terror to evil-doers, and his 
high standard of justice is raising American prestige in China. 

We urge upon Congress the necessity of providing a suitable code of laws for the 
guidance of the United States court in China, the present lack of which is a serious 
handicap to the court. 

The official reports to the Department are to the same effect. 
Mr. Ragsdale, the consul-general at Tientsin, reports; 

_ Now that we have a United States court for China the matter has been taken up 
vigorously by the prosecuting attorney, and, if not interfered with; the cause of our 
sharne will soon be a thing of the past. Nearly all of the undesirables have either left 
or will leave very shortly. The gamblem have either closed their places or have sold 
out, and all the so-called “American Houses” have been closed or passed into the 
possession of other nationalities. 

In this connection I feel it my duty to express my appreciation of the new court. 
Whatever may have been the criticisms, the court should have the sympathy and sup¬ 
port of the Department. The situation demanded such action as the court has taken. 
In no other way could the long-standing and deep-rooted disgrace be abolished. 

^Ir. Rodgers, until last summer the consul-general at Shanghai, 
reports: 

I have the honor to report in connection with the arrest and prosecution by the 
United States court for China of the keepers of American bawdy houses in Shanghai 
that six have pleaded guilty and been fined $1,000 Mexican. * * * The American 
inmates of these houses have left or are going, and although some may return or stay, 
it is well known that the day of the “American girl” as a prostitute in Shanghai is 
ended. * * * 

The prosecution of the American prostitutes has been received in Shanghai with 
varied sentiment, as was natural to expect. A certain class, which was quite agree¬ 
able to allowing America to assume and continue such a burden of odium, is vehement 
in denunciation, but on the other liand the respectable classes agree that the action of 
the court is entirely right. 

I beg to state in this connection that no such successful outcome could have been 
reached without the authority and process of the United States court for China. 

Mr. Charles Denby, who succeeded Mr. Rodgers as consul-general 
at Shanghai, reports, under date of September 13, 1907: 

It is the determination of the American attorneys in this city who have been affected 
by the judge’s rulings, and some of whom have a deep animosity against the judge 
on account of action by him against them some years ago in Manila, to make every 
possible effort to overthrow the court. I wish, however, to confirm the opinion which 
has been expressed by every reputable American interest in China that the conduct 
of Judge Wilfley is worthy of the highest praise. 

Secretary Taft upon his own personal inquiry during his recent 
visit to China expressed his opinion in a public speech at Shanghai, 
which he confirmed in a letter to the Secretary of State. He said: 

Our Government was fortunate in the selection as the first judge of that court of a 
gentleman who had given four years’ experience in the Orient as attorney-general of 
the Philippines, and who came to Shanghai with an intimate knowledge of the method 
of uniting, in one administration, the principles of the common law of the United 
States with the traditions and conditions of a foreign country. His policy in raising 
high the standard of admission to the bar and in promoting vigorous prosecutions of 
American violators of law and the consequent elimination from this community of 
undesirable characters who have brought disgrace upon the name of Americans in the 


108 


CHARGES AGAINST JUDGE LEBBEUS R. WILFLEY. 


cities of China can not but commend itself to everyone interested in tjie good name 
of the United States among the Chinese people and with our brethren of other coun¬ 
tries who live in China, ft involves no small amount of courage and a great deal of 
common sense to deal with evils of this character and to rid the community of them. 
Interests which have fattened on abuses can not be readily disturbed without making 
a fight for their lives, and one who undertakes the work of cleansing and purifying 
must expect to meet resistance in libel and slander and the stirring up of oflicial 
opposition based on misinformation and evil report. I am glad to think that the 
circuit court for China has passed through its trial, and that the satisfaction which its 
policy has brought to the American and foreign communities in China and to the 
Chinese people will not be unknown to the Administration at Washington, at whose 
instance this court was first established. 

All of these evidences have been confirmed by numerous conversa¬ 
tions with Americans returning from China who sought the State 
Department to express their satisfaction over the good work that has 
been done in Shanghai. 

The circumstances thus presented exhibit a motive for the attempt 
to drive Judge Wilfley from his position. They present a strong 
probabihty of misjudgment, exaggeration, and distortion of facts on 
the part of the lawyers who have personally suffered from the changed 
conditions. They make it clear that upon no trifling grounds should 
our Government incur the public misfortune which would be involved 
in putting the stamp of disapproval on the work for decency and 
righteousness that the United States court for China has done. 

My opinion is that Judge Wilfley is entitled not to condemnation 
but to commendation and high credit for his conduct in office, and 
that the charges against him should be dismissed. 

Respectfidly submitted. 

Elihu Root. 

February 29, 1908. 


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